[1] In a case where a trust company of a securities investment trust under the former Securities Investment Trust Business Act enters into a contract involving debt burden with a third party, whether the validity of the contract naturally affects the trustee company (negative)

[2] The person exercising the right of set-off against the claims belonging to the trust property held by the trustee company under the Securities Investment Trust Business Act (=trustee company)

[1] Articles 17(5) (see current Article 93(2)), 24, 25 (see current Article 93(1)), and 38 (see current Article 23 of the Indirect Investment Asset Management Business Act) of the former Securities Investment Trust Business Act (amended by Act No. 505, Jan. 13, 198); Article 3(2) of the Trust Act / [2] Articles 17(4) (see current Article 93(2)) and 25(1) (see current Article 93(1) of the Indirect Investment Asset Management Business Act) of the Securities Investment Trust Business Act

[2] Supreme Court Decision 2002Da12734 decided Dec. 26, 2002 (Gong2003Sang, 470)

C. B. B.L. L. L. S. L. L. S. S. L. S. L.S. (Attorneys Lee Im-soo et al., Counsel for the defendant-appellant)

Korean Investment Securities Co., Ltd. and one other (Law Firm Sejong, Attorneys Seo Sung-sung et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2004Na31144 decided July 27, 2005

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

According to the reasoning of the lower judgment, the lower court: (a) acknowledged the facts as indicated in its reasoning; (b) determined that Defendant 4 had no interest in the construction of the instant investment trust agreement with the Plaintiff at the time of the 4th of Korea Investment Services and Capital Markets (hereinafter “Korea Investment Services and Capital Markets”) that it would have been difficult to obtain the 4th of Korea Investment Services and Capital Markets at the time of the 4th of that agreement; and (c) that Defendant 4 had no interest in the construction of the 4th of the 4th of that agreement, including that of the 4th of that agreement; and (d) had no interest in the construction of the 9th of that agreement, including that of the 4th of that agreement, the 9th of that agreement that the 4th of that agreement would have been made; and (d) had no interest in the construction of the 4th of that agreement, including that of the 9th of that agreement, the 9th of that agreement would not have been made by the 9th of that agreement.

In light of the records, the above fact-finding by the court below is just and acceptable. In addition, due to the following circumstances revealed by the records, i.e., the current value of MF3, an underlying asset of the Nomart of this case, as of October 14, 1997, which was determined as the base date for the change of investment structure, the court below determined as the base date for the change of investment structure, and disposed of it at a specific price, and it is necessary to purchase GK at a specific price and secure the investment assets without delay. To this end, it is necessary to conclude a repurchase agreement with the Plaintiff at the point of time as of the above base date after the determination of the amount, interest rate, maturity, etc. of the loan necessary for the purchase of GKO, and the decision of the court below on October 28, 1997 by misunderstanding the legal principles as to the redemption of trust assets and MF3 loans, the amount of loan borrowed at the maturity of 190% and 99% interest rate (190% interest rate and 90% interest rate).97 per annum (197).97%).97%).

2. As to the grounds of appeal Nos. 2 and 3

In addition to the reasoning of the lower judgment and other circumstances indicated in the record, the following facts were revealed: (a) when Defendant Korea Investment Securities invested in Thaiton 4 invested in Thaiton 4, and a large amount of loss was incurred; (b) Defendant Korea Investment Securities’s international investment management plan was drafted to include a plan to increase the return of investment by changing from the indirect investment structure that Defendant Korea Investment Securities was able to obtain only a fixed return of investment to the investment structure directly managing the Plaintiff in order to compensate for the loss; (c) Defendant Korea Investment Securities received internal settlement of the investment structure of this case under the direction and approval of the head of the international management team of Defendant Korea Investment Securities; and (d) the Nonparty was entitled to conclude the instant repurchase contract on behalf of the Defendant Korea Investment Securities by citing the first instance judgment; and (d) there was no error in the misapprehension of legal principles as to the partial portion of trade employees and comprehensive power of representation as otherwise alleged in the ground of appeal No. 2.

In addition, the allegation in the ground of appeal No. 3 that the lower court’s determination that Defendant Korea-Investment Securities ratified the instant repurchase agreement concluded by the Nonparty, who was not authorized to exercise authority, is unlawful, and as long as the lower court’s principal determination that the Nonparty was legally authorized to conclude the instant repurchase agreement on behalf of the Defendant Korea-Investment Securities was justifiable, it merely argues that the lower court’s additional determination that could not affect the conclusion of the judgment is unlawful, and thus, it cannot be

3. As to the fourth ground for appeal

In the securities investment trust under the former Securities Investment Trust Business Act (amended by Act No. 5505, Jan. 13, 1998; hereinafter the same shall apply), the trustee company should manage the trust by publicly announcing the trust by stating the name of the truster company upon being entrusted with the custody of securities constituting the trust property from the truster company (Article 17(5) of the former Securities Investment Trust Business Act; Article 3(2) of the former Trust Act); while the truster company has the right to exercise all rights, such as voting rights on the securities, etc., which are the trust property, but the exercise of such rights is merely necessary through the trustee company (Article 25 of the former Securities Investment Trust Business Act); while the truster company has the authority to instruct the trustee company to manage the acquisition and sale of the securities, etc., while the trustee company is in a passive position to comply with the management instructions of the truster company in principle without independent management authority (Article 24 and Article 38 of the former Securities Investment Trust Business Act). Thus, if the management company of the trust property under the former Securities Investment Trust Business Act constitutes a trust agreement with a third party, it cannot be held an obligation to manage the trust property separately with a third party.

In light of the above legal principles and records, the court below accepted the judgment of the court of first instance, and held that the redemption price of this case, which the plaintiff sought, is only an amount based on the redemption contract of this case concluded by Defendant Korea Investment Securities as a truster company for the purpose of devolving 4's interest, and it does not relate to the trust property of investors 4 Soloton 4. Defendant Korea Investment Securities bears the obligation under the redemption contract of this case in the process of reverting 4's profit through the reorganization of investment structure as a truster company of Maloton 4, and it does not necessarily cause loss to the trust property of Maloton 4. Thus, it is just to determine that the redemption contract of this case concluded between Defendant Korea Investment Securities, a truster company, and the plaintiff, cannot be deemed null and void as it violates Article 103 of the Civil Act. There is no error in the misapprehension of legal principles as to Article 103 of the former Securities Investment Trust Business Act and the Civil Act, as otherwise alleged in the ground of appeal No. 4.

4. As to grounds of appeal Nos. 5 and 6

According to the facts established by the court below, the plaintiff under the repurchase agreement of this case shows that the plaintiff can claim the difference as a redemption price after evaluating the market price of the securities subject to repurchase offered as security and offsetting it based on the set-off. Thus, it is sufficient for the plaintiff as the plaintiff to conduct an appraisal of the securities subject to repurchase and claim the payment of the redemption price after deducting the equivalent amount from the redemption price bond.

In the same purport, the court below is just in rejecting the Defendants’ simultaneous performance defense premised on the premise that Defendant Korea Investment Securities can be returned from the Plaintiff itself by citing the judgment of the court of first instance, and there is no error in the misapprehension of legal principles as to simultaneous performance defense as otherwise alleged in the ground of appeal No. 5.

In addition, the fact-finding and judgment of the court below can be deemed to include the purport of rejecting the Defendants' claims on the ground of nonperformance of the duty to claim conversion on the premise that the Plaintiff had no duty to claim conversion on the securities subject to redemption of Defendant Korea Investment Securities, and on the premise that the Plaintiff had no duty to claim conversion on the part of the Russian government. In addition, according to the reasoning of the judgment below, the court below, in citing the judgment of the court of first instance, determined that the amount of the redemption price obligation to be paid by the Defendants is calculated by deducting the amount equivalent to the value of the securities which would have been adjusted when the Plaintiff filed a claim for conversion of the securities subject to redemption from the amount of the redemption price of this case, and therefore, even if the court below did not expressly determine the Defendants' claims on

5. As to ground of appeal No. 7

The trust property held by a trust company under the former Securities Investment Trust Business Act in trust with funds, etc. collected by investors from investors is externally owned by the trustee company pursuant to the legal principles under the Trust Act and the Securities Investment Trust Business Act. Thus, the offset right, barring any special circumstance, with automatic bonds belonging to the trust property, shall also be exercised by the trustee company as the principal agent of a legal act. In this case, the passive bonds shall be liabilities borne by the trustee company (see Supreme Court Decision 2002Da12734, Dec. 26, 2002, etc.).

In light of the above legal principles and the records, since the investment structure of this case was changed to direct investment, interest coophone, which is the trust property of Yton 4 held by the trustee company, is not deemed to have reverted to the original property of the defendant Korean Investment Securities. In addition, since the debt of this case is not the trust company's debt but the defendant Korean Investment Securities, which is the trust company, is its own own debt of the defendant Korean Investment Securities, the defendant Korean Investment Securities cannot offset the plaintiff's claim for payment of interest coo, which is the trust property of Yton 4 held by the trustee company, against the claim for payment of interest coo, which

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the attribution of trust property and set-off in the securities investment trust, as otherwise alleged in the ground of appeal

6. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)