Korea Coal Corporation (Law Firm Hannuri, Attorneys Kim Sang-won et al., Counsel for the defendant-appellant)

Han Securities Co., Ltd. and one other (Law Firm Sejong, Attorneys Yellow-tae et al., Counsel for the plaintiff-appellant)

June 13, 2003

1. Defendant Treatment Securities Co., Ltd shall pay to the Plaintiff the amount of KRW 2,319,593,815 per annum from February 12, 2000 to January 30, 2004; and 20% per annum from the following day to the full payment date.

2. The plaintiff's remaining claims against Defendant Daewoo Securities Co., Ltd. and the claims against Defendant Seoul Investment Trust Operation Co., Ltd. are dismissed, respectively.

3. Of litigation costs;

A. The part arising between the Plaintiff and the Defendant Daewoo Securities Co., Ltd. shall be five minutes and two others shall be borne by the Plaintiff, and the remainder by the above Defendant, respectively.

B. The part arising between the Plaintiff and Defendant Seoul Investment Trust Operation Company is assessed against the Plaintiff.

4. Paragraph 1 can be provisionally executed.

The Defendants jointly and severally pay to the Plaintiff the amount of 3,811,118,724 won and the amount of 6% per annum from December 30, 1999 to May 31, 2003, and 20% per annum from the next day to the date of full payment.

1. Basic facts

The following facts are not disputed between the parties, or facts: Gap evidence 1 through 9, Eul evidence 10-1 through 12, Eul evidence 13-3, Eul evidence 13-1, Eul evidence 2-1, Eul evidence 2-3, Eul evidence 9-1 through 7, Eul evidence 10-1, 2, Eul evidence 11-2, Eul evidence 12, Eul evidence 14-1, 17, 19, 21-22, Eul evidence 24, Eul evidence 25-1, Eul evidence 26-1, 3-2, Eul evidence 3-1, 3-2, Eul evidence 2-1, 3-1, 3-2, 3-1, 3-2, 3-1, 3-2, 3-2, 4-1, 3-1, 3-2, 3-2, 4-1, 3-2, or 5-2, 3-1, 6-1, 3-

(a) Establishment of investment trust and purchase of beneficiary certificates;

(1) On October 22, 1998, the Defendant Seoul Investment Trust Operation Co., Ltd. (the following, Defendant Seoul Investment Trust Operation Co., Ltd.), a truster company that operates an investment trust pursuant to the Securities Investment Trust Business Act, concluded a Spain social investment trust agreement (S) 20 with the Seoul Bank Co., Ltd. (the trustee company).

(2) On June 28, 1999, the Plaintiff entered into a beneficiary certificate savings agreement with Defendant Daewoo Securities Co., Ltd. (hereinafter from the next day), which is a selling company engaged in the sales of beneficiary certificates pursuant to the Securities Investment Trust Business Act on December 28, 199, with respect to savings items relating to the above Spain (S) 20 investment trust (the investment trust of this case from the next day) [this company was the name of this selling company, but the name of the above Spain (S) 20, which was committed by the management company after the sale of beneficiary certificates, was unified], and the maturity (the date of exemption from redemption fees) was determined on December 25, 199 as the beneficiary certificate savings agreement with each of the above Spain (S) 33 beneficiary certificates (S) from Defendant Daewoo Securities Co., Ltd. (the beneficiary certificates of this case from the next day).

(b) measures for postponement of redemption 8.12

(1) However, on July 19, 199, with the announcement of the restructuring policy for the Treatment Group's claims, there were concerns over the aggravation of the financial standing of the Treatment Group, and the movement of investors' claims for large amount of redemption. An investment trust company, on August 12, 1999, pursuant to Article 47 (1) and (2) of the Investment Trust Business Supervision Regulations, it is difficult for the Treatment Group's affiliated companies to make adequate appraisal of the bonds and commercial papers issued by the Treatment Group's affiliated companies under restructuring to make it difficult for the Treatment Group's affiliated companies to make adequate appraisal of the bonds and commercial papers, and there is concern about the completion of the financial system due to the large repurchase situation. As of August 24:0, 199, the investment trust company filed an application for postponement of redemption from the date of establishment and management of the trust property of all securities investment trust companies to the date of postponement of redemption (the next postponement of redemption, excluding treatment bonds, to the date of postponement of redemption) and the following portion of the beneficiary certificates from August 13, 7, 1999.

(2) On the other hand, the Investment Trust Association and the Korea Securities Dealers Association shall, in addition to an application for approval of postponement of redemption on the same day from August 13, 1999, postpone the full redemption of the claim for redemption by institutional investors (including the Plaintiff and government-invested or -invested institutions such as the Plaintiff) such as financial institutions upon the request of beneficiaries for redemption from August 13, 199 to July 1, 200; where it is possible to settle the final settlement at the market price appraised after July 1, 200; where it is possible to settle the early normalization of the Treatment Group, it shall be settled early; with regard to the claim of redemption by an individual or a general corporate investor, the full redemption shall be deferred in proportion to the ratio of inclusion into the Treatment Claim; however, with regard to the claim of redemption by an individual or a general corporate investor, it shall be paid in cash with a specified amount differentiated by the period of application; 80% as of the base price at the time of application for less than 180 days; 95% as of the final settlement amount not to be recovered.

(c) Details of claim for redemption and payment of redemption price;

(1) On December 29, 199, after the maturity date of the trust property of this case, the Plaintiff filed a claim for the redemption of the total amount of 9,294,889,670 of the beneficiary certificates of this case with respect to the Defendant treatment securities of KRW 6,128,120,760 ($ 65.93% of the total 9,294,889,670 of the beneficiary certificates of this case) (the base price at that time was KRW 1,100 of 1,000 of 1,100 of 1,102.49), but at that time, the Defendant Treatment Securities cannot prepare the total amount of the redemption price due to the liquidity shortage of the claim within the trust property of this case, and paid KRW 1,073,261,818 of the trust price to the Plaintiff as part of the redemption price.

[This case’s claim on December 29, 199 for the redemption of the beneficiary certificates of this case was accepted by the plaintiff on December 29, 199 that the defendant treatment securities of this case can only pay the redemption price, and the remaining non-performing loans and the part in which securitization is difficult later to pay the redemption price immediately. The plaintiff also consented to the above position of the defendant treatment securities of this case, and reserved the claim for the redemption of the remaining share of the beneficiary certificates of this case when receiving the redemption price of 1,073,261,818 won as of December 29, 199. Thus, the plaintiff’s claim on December 29, 199 cannot be viewed as the claim for redemption of the whole non-performing share of this case’s trust assets of this case’s trust assets of this case’s trust assets of this case’s trust assets of this case’s trust assets of this case’s trust assets of this case’s trust assets of this case’s trust assets of this case’s trust assets of this case’s trust assets of this case’s 19.

(2) Thereafter, on July 14, 2000, the management companies of the securities investment trust, including the investment trust of this case, transferred the treatment bonds among the trust assets to the Korea Asset Management Corporation at a estimated price (estimated price). Accordingly, on July 24, 200, the defendant's treatment securities calculated the redemption price for the treatment bonds of 3,166,768,910 (34.07%) among the trust assets of this case according to the above transfer value, and paid 1,31,587,725 won to the plaintiff.

D. Separation of funds

(1) On the other hand, on October 2, 1999, the Investment Trust Association: (a) prepared a “Fund Separation Guidelines” stating that the beneficiaries who suffered losses due to the measures to postpone redemption as above 8/12 may incur losses to the beneficiaries; and (b) separated the relevant trust property from the method of separating the relevant trust property according to the beneficiary’s share ratio; and (c) divided the fund into shares in the way of separating the fund into shares upon the beneficiary’s request from the beneficiaries or beneficiaries at the request of the financial institution, etc.; and (d) divided the fund into shares in the same manner as before and after the conversion into shares in the same manner as the investment trust (excluding MMF); and (e) separately divided the fund into shares in the same manner as before and after the conversion into shares in the way of investment trust (i) separate the fund from shares in the same manner as before and after the conversion into shares in the way of investment trust (i) separate the existing bond type fund from shares in the way of investment trust (i.e., the beneficiary’s request by the beneficiary).

(2) On January 10, 200, in order to fix the percentage of non-performing assets in the instant trust property, the Plaintiff filed an application for the separation of funds from simple fund that is subject to the same contractual terms and conditions before and after the separation, and as a result, the Plaintiff created a single fund that is “GSpain social 20,” the beneficiary of which is the Plaintiff.

(e) Depreciation of treatment call bonds, etc.;

On the other hand, since the amendment of the Securities Investment Trust Business Supervision Regulation on April 1, 1998, there was a basis to redeem the delinquent bonds among the bonds incorporated into the trust property. The Defendant Seoul Investment Trust, the management company, changed the call bonds to the trust property of this case on May 6, 200, and disposed of the residual value to 40% of the residual value of the trust property.

2. The parties' assertion

A. The plaintiff

(1) According to the provisions of the statutes and the terms and conditions applicable to the redemption of the beneficiary certificates of this case, where a beneficiary claims for redemption on the same day, it is required to pay the redemption price to the beneficiary at the base price of the date of the claim for redemption. Thus, the defendant's treatment securities are a selling company, and the defendant's Seoul Seoul Investment Trust is jointly and severally liable to pay the difference between the redemption price calculated at the base price of December 29, 199, the date of the claim for redemption of the beneficiary certificates of this case,

(2) Even if the Plaintiff’s conversion of the instant trust property into a single fund on January 10, 200 and withdrawn the claim for redemption on December 29, 1999, the Plaintiff again filed a claim for redemption on January 10, 200, and thus, the Defendants are jointly and severally liable to pay the difference between the redemption price calculated at the base price on January 10, 200 and the actual redemption price paid, and damages for delay.

B. The Defendants

(1) Defendant Treatment Securities

(A) The person liable to pay the redemption price

In light of the nature and contents of the securities investment trust system, the function and contents of the redemption system, and the specific situation at the time of the instant claim for redemption, etc., the Defendant, as the selling company, takes charge of the role of receiving the redemption money created by partial termination of the investment trust from the management company, and paying it to the beneficiary, and does not bear the obligation

(B) Details of the redemption obligation

(i) Treatment debentures;

On December 29, 199, the Plaintiff did not claim the redemption of treatment bonds. Even if the Plaintiff claimed the redemption of treatment bonds as of the above date, the above Defendant already settled and paid the redemption price of treatment bonds to the Plaintiff in accordance with the substance of the postponement of redemption measures.

2) Non-treatment of debt;

A) Withdrawal of existing claims for redemption or waiver of subsequent rights

Even if the plaintiff filed a claim for the redemption of all non-treated bonds on December 29, 1999, the plaintiff expressed his/her intent to follow the legal relationship in accordance with the creation of a single fund by creating a new private fund on January 10, 200. Accordingly, the plaintiff is deemed to have withdrawn the claim for redemption as of December 29, 199, or renounced the right to claim redemption as of December 29, 199. Thus, the above defendant cannot respond to the plaintiff's claim for redemption of this case on the premise that the claim for redemption of non- treated bonds is still valid on December 29, 199.

B) In the case of claiming redemption from a private fund, the repayment is due to the issue of redemption

In addition, the GSpain Social Investment Trust No. 20, which is separated from the fund as above, is a single fund that is the plaintiff, and the beneficiary claims for all beneficiary certificates of one beneficiary. In light of the fact that the redemption process that conforms to the nature of the investment trust is a redemption by the "Partial Termination of the Trust", the entire claim for the entire beneficiary certificates in the private fund refers to the termination of the investment trust. When the investment trust terminates, the claim for the entire beneficiary certificates in the private fund refers to the redemption of the investment trust. When the whole of the investment trust terminates, the claim for the redemption of the beneficiary certificates is returned to the issue of redemption, which is the essence of the beneficial interest. The responsibility for the payment of the redemption is for the trust company that is a party to the securities investment trust, and the selling company only serves as the place of payment (the payment is made to the plaintiff by dividing the beneficiary certificates of this case, and it is not fulfilled with its own unique redemption obligation of the above defendant). Ultimately, the above defendant, the selling company, does not respond to the plaintiff's claim

C) the legitimacy of postponement of redemption

Even if Defendant Treatment Securities is liable to pay the redemption price to the Plaintiff as proprietary property, if there is a serious gap between the base price of certain bonds incorporated as trust property at the time of the date of the claim for redemption as in the case of the investment trust in this case and net asset value, and thereafter the disposition of redemption has been made to a considerable extent, it shall be deemed that there exist exceptional causes for postponement of redemption, i.e., for which the redemption price cannot be paid according to the base price on the date of the claim for redemption as proprietary property at the time of the claim for redemption. Thus, even without any delay of redemption, Defendant Treatment Securities is liable to pay the redemption price only for the assets that could have been able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to

(2) Defendant Seoul Investment Trust Operation

According to the statutes and terms and conditions applicable to the redemption of the beneficiary certificates of this case, the beneficiary may claim for the redemption price to the truster company only in exceptional cases where the selling company is unable to respond to redemption due to dissolution, etc., and since the Defendant Treatment Securities, which is the selling company, did not occur, the Defendant Seoul Investment Trust Operation did not have the obligation to pay the redemption price of the beneficiary certificates of

3. Determination

(a) Person liable for payment of redemption price;

(1) Other party to a claim for redemption under statutes and terms and conditions

(A) Article 7 of the former Securities Investment Trust Business Act (amended by Act No. 558, Sep. 16, 1998; hereinafter “former Investment Trust Business Act”) that applies to the instant investment trust (hereinafter “the former Investment Trust Business Act”) may request the truster company that issued the beneficiary certificates to repurchase in cash. However, where the truster company is unable to accept the request for redemption due to dissolution, revocation of permission, suspension of business of the truster company, or any other cause prescribed by the Presidential Decree (hereinafter “Dissolution, etc.”), it may directly request the trustee company under the conditions as prescribed by the Ordinance of the Prime Minister (Article 1).

(B) In addition, Article 16 of the Securities Investment Trust Terms and Conditions (hereinafter “Terms and Conditions”) of the instant Securities Investment Trust (hereinafter “Terms and Conditions”) provides, “(i) when a beneficiary intends to claim for redemption of beneficiary certificates, the sales company that purchased beneficiary certificates shall file a claim with the sales company, etc.: Provided, That where the beneficiary is unable to comply with the claim for redemption due to dissolution, cancellation of permission, etc. of the management company, it may directly file a claim with the trustee company under Article 7(1) of the Act, and where the sales company is unable to comply with the claim for redemption due to dissolution, etc., it may directly file a claim with the management company or the trustee company under Article 7(2) and (3) of the Act (Article 7(1) of the Act. (ii) Where the beneficiary claims for redemption of beneficiary certificates, the sales company shall repurchase the beneficiary certificates at the base price as of the date of the claim for redemption and pay the redemption price in cash at the sales company’s place of business.” However, where it is impossible to pay the selling company’s’

(C) According to the provisions of the above old Investment Trust Business Act and the terms and conditions, the beneficiary claims for redemption of beneficiary certificates against the truster company. However, where the beneficiary purchased beneficiary certificates from the selling company, the beneficiary may claim for redemption against the selling company. In such a case, the beneficiary may claim for redemption only when the selling company is unable to comply with such claim for redemption due to dissolution, etc.

(2) Whether the selling company's duty to redeem with its own property exists

(A) As seen earlier, Article 7 of the former Investment Trust Business Act provides that a beneficiary who is the holder of beneficiary certificates shall, in principle, file a claim for redemption with the truster company which is the issuer of beneficiary certificates, and where the beneficiary certificates have been purchased from the selling company, the truster company or the selling company which has received the claim for redemption shall repurchase at least 15 days at latest from the date of receiving the claim for redemption. In addition, Article 30 of the former Investment Trust Business Act provides that "A truster who has obtained the permission for the sales of beneficiary certificates may repurchase the beneficiary certificates with its own property (Paragraph 1), and in this case, the truster may acquire profits from the fluctuations in the base price (Paragraph 2). Further, Article 12 of the Enforcement Decree of the former Investment Trust Business Act provides that "1. Where the beneficiary certificates issued are not sold,2.2. or the truster company or the selling company has not sold the beneficiary certificates with the inherent property, and it shall not be deemed that there was a general reason to exclude them from the redemption of the beneficiary certificates in a large amount of claims for redemption."

(B) In the instant terms and conditions, the term “redemption” defines as “repurchasing beneficiary certificates sold by the selling company at the beneficiary’s request” (Article 2(8)), and stipulates that “In the event a beneficiary claims redemption of beneficiary certificates, the selling company redeems the beneficiary certificates at the base price as of the date of the claim for redemption and pays the redemption price in cash at the selling company’s business office. However, if it is impossible for the selling company to pay the redemption price with its assets because of large amount of claims for redemption of beneficiary certificates, the selling company may pay the redemption price within 15 days from the date of claim for redemption (Article 16(

(C) In accordance with the Securities Investment Trust Business Act amended by Act No. 5044 of Dec. 29, 1995, a truster company, which was engaged in the management of investment trust (establishment and termination of an investment trust, investment and management instruction of trust property), and sales of beneficiary certificates (public offering and sale of beneficiary certificates, sale and repurchase of beneficiary certificates, etc.), was divided into the original truster company and the company in charge of the management of investment trust (hereinafter “investment trust operation”), and as a result, a dealer in charge of the sales of beneficiary certificates appeared. Accordingly, the provisions on redemption of beneficiary certificates were changed to make a claim for redemption against a truster company (the designated person, if the person who is obligated to comply with redemption is separately designated).

(D) In the Securities Investment Trust Business Act amended on September 16, 1998, Article 30 of the former Investment Trust Business Act, which provides for redemption with the inherent property of a selling company or a truster company, was deleted, and Article 7(5) of the former Investment Trust Business Act provides that “a truster company or trustee company liable to comply with redemption shall comply with redemption only with cash payment created through the partial termination of the trust,” and the amended Enforcement Decree of the Securities Investment Trust Business Act deleted the provisions of subparagraphs 2 and 3 of Article 12 of the former Enforcement Decree of the Securities Investment Trust Business Act (limited to cases where the partial termination of the trust is limited) and deleted the provisions of Article 12 subparag. 2 and 3 of the former Enforcement Decree of the Securities Investment Trust Business Act.”

(E) In full view of the provisions of the terms and conditions as seen above, the contents of the former Investment Trust Business Act, the president of the selling company, the amendment of the redemption regulations, and the amendment of the former Investment Trust Business Act, etc., the Defendant, the selling company, shall be regarded as an independent party who sells beneficiary certificates on its own responsibility in the securities investment trust, and the Defendant, the selling company, as its own property, shall be construed to have a duty to accept the beneficiary’s claim for redemption

(3) Sub-decisions

Therefore, in the instant investment trust, the Defendant Treatment Securities, the selling company, bears the obligation to pay the purchase price directly to the Plaintiff. On the other hand, the Defendant Treatment Securities, the management company, is obligated to perform the redemption obligation only when it is unable to perform the redemption obligation due to dissolution, etc. under the proviso of Article 7(2) of the former Investment Trust Business Act and the proviso of Article 16(1) of the Terms and Conditions of this case. Unless there is any evidence supporting that the Defendant Treatment Securities cannot comply with the redemption due to dissolution, etc., the Plaintiff cannot seek the payment of the purchase price of the instant beneficiary certificates directly from the Defendant Seoul Investment Trust.

In regard to this, the Plaintiff again asserts that the Defendant’s Seoul Investment Trust Operation jointly carries out the Defendant’s Daewoo Securities and Investment Trust and shares the fees therefor. This constitutes a partnership relationship under the Civil Act in the form of dividing a single business called a securities investment trust, and that the obligation to pay the redemption proceeds to the beneficiaries is a business obligation that is incurred as a commercial activity for investment trust, which is a joint business. As such, the Defendant Seoul Investment Trust’s claim that the Plaintiff is jointly and severally liable to pay the said redemption proceeds to the Plaintiff pursuant to Article 57 of the Commercial Act. Therefore, even if there is the above agreement among the Defendants on the allocation of the said fees, it is merely merely an agreement on the payment of the consignment fees according to the role performed by each of the Defendants in the legal relations of the securities investment trust, and it is difficult to see that the Defendants

(b) Details of the obligation to repurchase and postponement of the redemption;

(1) Details of the redemption obligation

(A) statutory and contractual provisions

As seen earlier, Article 7(1) through (3) of the former Investment Trust Business Act provides that a beneficiary may claim a truster company, trustee company, or distributor (hereinafter “distributor, etc.”) to redeem beneficiary certificates in cash, and the main text of paragraph (4) provides that “any person who is obliged to comply with a claim for redemption pursuant to the provisions of paragraphs (1) through (3) shall repurchase beneficiary certificates within 15 days at the latest from the date of receiving the claim for redemption.” Thus, the provision of Article 7(4) of the former Investment Trust Business Act on the redemption of beneficiary certificates is interpreted to mean a redemption as the base price of beneficiary certificates at the time of approval by the distributor, etc. within 15 days from the date of receiving the claim for redemption of beneficiary certificates under the premise that the redemption is established by the beneficiary’s claim for redemption and the consent by the distributor, etc.

In addition, unlike the main text of Article 7(4) of the former Investment Trust Business Act, Article 16(2) of the Terms and Conditions of this case provides, “Where a beneficiary claims redemption of beneficiary certificates, the selling company redeems the beneficiary certificates at the base price on the date of the claim for redemption and pays the redemption price in cash at the sales company’s business office: Provided, That where the selling company’s assets cannot be paid as a result of a large amount of claim for redemption of beneficiary certificates, the selling company may pay the redemption price within 15 days from the date of claim for redemption.” This is interpreted to mean that, where a beneficiary claims redemption of beneficiary certificates, the selling company is obligated to enter into a redemption contract without the consent of the selling company, and the selling company is obliged to pay the redemption price without the consent of the selling company, but where it is impossible for the selling company to pay the redemption price as its assets due to a large amount of claim for redemption (see Supreme Court Decision 201Da67171, Nov. 2

(B) Therefore, the Defendant Treatment Securities, a selling company, has the obligation to pay, in principle, the redemption price calculated by the base price on the date of redemption on the date of redemption on the Plaintiff’s claim for redemption (the main text of Article 16(2) of the Terms and Conditions), and ② If “when it is impossible for the selling company to pay the redemption price calculated by the date of redemption on the date of redemption on the date of redemption on the date of claim for redemption” falls under “when it is impossible for the selling company to pay the redemption price as its assets,” it can be extended within 15 days

(2) Postponement of redemption

(A) The meaning of the deferment system

The beneficiary's right to claim redemption is not naturally accepted in light of the essence of the securities investment trust system (the right to claim redemption only in open-end investment trust). In particular, the old Investment Trust Business Act or terms and conditions require a truster company or a distribution company to bear the obligation to redeem its proprietary property, thereby maintaining the capital nature of trust property stable, creating a beneficiary certificate market necessary for the acquisition or disposal of investors' beneficiary certificates. The purpose of the securities investment trust is to ensure that the profit and loss from the management of trust property belongs to the beneficiary and the principle of equality of beneficiaries equally divided among beneficiaries according to the transparent standard for the share of beneficial rights. In light of the purport of recognizing the right to claim redemption based on the inherent property of the distribution company and the essence of the securities investment trust, it is necessary for the selling company to bear the obligation to pay the redemption price to beneficiaries in excess of the basic price for reasons such as rapid insolvency of the securities incorporated into the trust property and the net asset value of the trust property, and ultimately, it is necessary for the selling company to pay the remaining amount of the trust property to beneficiaries.

(b) The provisions of the former Investment Trust Business Act and the terms and conditions

1) Meanwhile, as seen earlier, Article 7(1) through (3) of the former Investment Trust Business Act provides that a beneficiary may file a claim for redemption in cash with a selling company, etc. Paragraph (4) provides that “any person who is obliged to comply with a claim for redemption under the provisions of paragraphs (1) through (3) shall repurchase at least 15 days at the latest from the date of receiving the claim for redemption: Provided, That where natural disasters, closedown, suspension, or closure of securities markets, or other unavoidable reasons exist, the repurchase may be postponed upon approval from the Financial Investment Services and Capital Markets at the latest until such reasons cease to exist.” In light of the fact that the market price of beneficiary certificates cannot be formed or the market price cannot be known typically, “other unavoidable reasons” provided as one of the grounds for postponement of redemption under the premise that the market price cannot be formed due to natural disasters, closure, suspension, or closure of the securities market, or that there is no possibility that the market price would be considerable difference between the current price and the beneficiary certificates at the latest 7th market price.

2) In addition, Article 16(3) of the Terms and Conditions of the instant case also provides that “In the event of natural disasters, disasters, closing, suspension, or closure of a securities market, or other extenuating circumstances, the distribution company may postpone redemption upon approval from the Financial Investment Services and Capital Markets Act, and until such grounds cease to exist,” the same provision as the proviso of Article 7(4) of the former Investment Services and Capital Markets Act provides that “The grounds for and effects of postponement of redemption should be the same as above.”

(C) The need to take measures to postpone redemption

Furthermore, with respect to whether the existence of grounds for postponement of redemption naturally takes effect or requires certain measures for postponement, ① the proviso to Article 7(4) of the former Investment Trust Business Act and Article 16(3) of the instant terms and conditions provide that “any person liable for redemption may postpone redemption with approval from the Financial Investment Services and Capital Markets Act if any specific ground exists” means the form of providing for discretion as to whether to postpone redemption to the person liable for redemption. ② The system basically provides for protecting the interests of the person liable for redemption, it is inevitable to conflict with the interests of the beneficiary who is the opposite party, and it is necessary to clearly express the intention of postponement of redemption to all beneficiaries, barring any special circumstance. The purpose of the proviso to Article 7(4) of the former Terms and Conditions for Redemption is to ensure that it is difficult to determine the scope of redemption postponement of the former terms and conditions as to whether the person liable for redemption continues to accept the request for postponement of redemption and the extent of postponement of redemption, and it is also necessary to determine the scope of redemption of the former terms and conditions for postponement of redemption.

D. In the instant case:

(1) Treatment Bonds.

(A) Whether a claim for redemption was filed

First of all, there is no evidence to acknowledge that the Plaintiff filed a claim for the redemption against the Defendant’s Securities on December 29, 199 or on January 10, 2000 for the claim against the 3,166,768,910 shares of the instant trust property among the instant trust property. Rather, according to the statement in subparagraph 7 and the testimony of the Non-Party witness, at the time, the Plaintiff only reserved the claim for the redemption against the bonds for which redemption has been postponed pursuant to the Non-Party’s postponement disposition, and therefore, the Plaintiff’s claim for this part on the premise that the Plaintiff filed a claim for the redemption against the bonds for which redemption has been deferred on the above date is without merit.

(B) Whether the redemption has been lawfully postponed

Even if the Plaintiff claimed redemption of the investment trust product including treatment bonds on the above date, comprehensively taking account of the overall purport of the pleading in the evidence No. 5, Eul’s claim for redemption is more than 27 trillion won at the time of the postponement of redemption, and there was an average incorporation ratio by investment trust as 18 trillion won. The appraisal of treatment bonds by account books that do not reflect the insolvency of treatment bonds, which clearly differs from the appropriate net asset value of investment trust property. Under such circumstances, if the redemption of the investment trust product including treatment bonds is allowed without limitation, it would cause losses to the repurchase investors first, and most trust companies would be bound to sell all bonds incorporated into the trust property to prepare redemption funds, and accordingly, it would be reasonable to recognize the possibility that the redemption of the trust company would actually withdraw the trust fund of this case as one of the inevitable reasons for the postponement of redemption under the old Act, including Article 7 of the Securities Investment Trust Act, which would have been incorporated into the financial market in the form of lump sum securities.

Therefore, the defendant treatment securities have the obligation to pay to the plaintiff the redemption price calculated at the market price at the time when the market price can be calculated for the 3,166,768,910 of the trust property of this case. The trust companies transferred the treatment bonds incorporated into the whole trust property to the Korea Asset Management Corporation on July 14, 2000, and the defendant treatment bonds paid the plaintiff the redemption price for the treatment bonds calculated at the above transfer amount on July 24, 2000. Thus, the defendant treatment securities paid to the plaintiff the redemption price for the treatment bonds calculated at the market price at the time when the market price can be calculated for the trust property of this case. Thus, the defendant treatment bonds paid to the plaintiff all the redemption price in accordance with the market price at the time when the market price can be calculated for the treatment bonds

[On the other hand, the Plaintiff asserts to the effect that even if the redemption of treatment bonds has been lawfully postponed, the Defendants are jointly and severally liable for damages due to the breach of fiduciary duty as seen above, since the Defendants excessively incorporated treatment bonds into the trust property of this case in violation of fiduciary duty and the ratio of incorporation into treatment bonds at the time of the claim for redemption has reached 34.07%.

First of all, in the securities investment trust like this case, the decision on all matters concerning the management of the investment trust property, such as the acquisition, sale, exercise of rights, etc. of the securities belonging to the investment trust property, is a truster company and the selling company is merely engaged in the sale of beneficiary certificates under a contract with a truster company, and thus, barring any special circumstance, it cannot be held liable for damages to the selling company for its management. Thus, the plaintiff's above assertion on the defendant treatment securities as the selling company is without merit, and the plaintiff's incorporation ratio of the trust property of this case as of December 29, 199 as of December 29, 34.07% as of the date of the plaintiff's claim. However, in full view of the overall purport of the arguments in the above statement in Eul or Eul evidence No. 3, since the increase in the above treatment bond ratio was due to the increase in the termination of trust property due to so-called treatment, it is difficult to conclude that the trust company, which is the management company of the above treatment bonds, violated the fiduciary duty of this case.

(2) Non-treatment of debt

(A) Payment obligation of the repurchase price

According to the above, the defendant treatment securities, as the selling company, are obligated to pay the redemption price calculated by the base price on the date of redemption claim to the plaintiff, who is the beneficiary, on the day of redemption claim.

(B) Determination as to the assertion of Defendant’s treatment securities

1) The assertion that the existing claim for redemption was withdrawn or renounced due to the separation of funds

On January 10, 200, the fact that the Plaintiff established a single fund with the consent to the separation of the fund and the beneficiary status of the Plaintiff is as seen above. However, in the case of the beneficiary certificates of this case, unlike the conversion of the fund into shares, the terms and conditions identical entirely to the transfer of the fund even after the separation of the fund, and the purpose of the separation of the fund was to prevent the transfer of additional losses by fixing the proportion of non-performing assets in the investment trust, and to prevent the transfer of additional losses, it is deemed that the Plaintiff’s application for the separation of the fund was made at the level that the Plaintiff promptly intends to receive the redemption price according to the existing claim for redemption by fixing the proportion of non-performing assets in the investment trust, and it is difficult to interpret that the existing claim for redemption was implicitly withdrawn, or that the Plaintiff would receive the redemption price only with the termination price of the trust property. Therefore, this part of the argument in this part is without merit.

2) Claim that the redemption claim of a sole fund would be due to the issue of redemption

In addition, as seen earlier, insofar as it cannot be deemed that the existing claim for redemption was implicitly withdrawn due to the separation of the fund, or that there was an intention to receive the redemption price only with the termination price of the trust property, the above argument of the defendant's treatment securities premised on the existence of the claim for redemption after the conversion of the trust property into a single fund is without merit, and it is not reasonable to review other points, and even if the existing claim for redemption was withdrawn due to the conversion into a single fund and thereafter there was a claim for redemption for all the beneficiary certificates thereafter, the seller's obligation for redemption under the former Investment Trust Business Act, in principle, purchased the beneficiary certificates with its own property, and thus it is not directly related to the termination of the investment trust. Therefore, the above argument is without merit.

3) Claim for postponement of redemption

On the other hand, there is no evidence to acknowledge that the Defendant Treatment Securities did not merely respond to the Plaintiff’s claim for redemption of the instant beneficiary certificates due to liquidity, but at least it expressed externally the subject of postponement of redemption and the objective and uniform purport of postponement of redemption to the extent specified in such cause, as well as that there was no evidence to acknowledge that the Defendant Treatment Securities had taken a series of measures, such as filing an application for approval on the gold reduction as to the contents of postponement of redemption (as stated in subparagraph 13-1 and 2 of this Article, the Defendant Treatment Securities notified the Plaintiff on May 29, 200 and November 7, 200, after the date of the above claim for redemption, that the redemption price cannot be paid because the assets available to the instant trust property cannot be terminated because the assets are almost possible to the instant trust property due to the lack of liquidity). Furthermore, the above assertion that the redemption is postponed as a matter of course because the difference between the base price of trust property and the net asset value of the trust property falls under a cause for postponement of redemption.

(C) Calculation of the amount of redemption

1) Time when delay liability arises: Whether the proviso of Article 16(2) of the Terms and Conditions apply

However, as seen earlier, it is reasonable to view that Defendant Treatment Securities constitutes “when it is impossible to pay part of the redemption price to the Plaintiff because it was impossible to prepare the full amount of the redemption price on December 29, 199, which is the date of the above claim for redemption,” and that this constitutes “when it becomes impossible to pay the selling company’s assets because of large volume of claims for redemption of beneficiary certificates” under the proviso of Article 16(2) of the Terms and Conditions of this case. Thus, Defendant Treatment Securities do not bear any delayed liability until 15 days from

2) Satisfaction of performance

Meanwhile, among the beneficiary certificates of this case, the redemption price based on the base price of December 29, 199, which was the date of the claim for redemption against the number of 6,128,120,760 units among the beneficiary certificates of this case, remains KRW 6,756,191,856 ( KRW 6,128,120,760 x 1,102.49). If the Plaintiff deducts KRW 1,073,261,818, which was paid by the Plaintiff on December 29, 1999, the date of the claim for redemption, the amount of KRW 5,682,930,930,038 ( KRW 6,756,191,856 - 1,073,261,818).

However, on February 11, 200, the Plaintiff received 3,390,427,451 won from Defendant Treatment Securities as a redemption price. Thus, it is reasonable to appropriate 27,091,228 won out of them to pay 5,682,930,038 won remaining after 15 days from the date of redemption claim for the amount of 5,682,930,038 won at the rate of 6% per annum from January 14, 200 to February 11, 200 (27,091,228 won x 5,682,930 x 0.06 x 29/360 x 29/365 x 29/365 x 365 x 29/365 x 205 x 3605 x 205 x 3605 x 3605 x 29.38 -5 -195 -295 -28 -295 -25 -205 - -205 -

4. Conclusion

Therefore, the plaintiff's claim against the defendant treatment securities is accepted within the scope of the above recognition, and the remainder of the claim is dismissed as it is without merit. The plaintiff's claim against the defendant's Seoul Investment Trust operation is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Chang-sik (Presiding Judge)