(영문) 부산지방법원 2009.12.28.선고 2009가단25339 판결

The defendant shall pay to the plaintiff 10 million won with 5% interest per annum from December 23, 2008 to the delivery date of a copy of the complaint of this case, and 20% interest per annum from the next day to the full payment date.

Reasons

1. Basic facts

A. On June 18, 2007, the Plaintiff purchased 100 million won financial instruments (hereinafter “instant product”) from the above bank, which is a selling company under the former Indirect Investment Asset Management Business Act (repealed by Act No. 8635, Aug. 3, 2007; hereinafter the same) at the Defendant’s recommendation, which is an employee of the bank, as an employee of the bank.

B. The instant product is beneficiary certificates issued by Korea Asset Management Corporation, an asset management company under the former Indirect Investment Asset Management Business Act, and is a product whose maturity is 36 months from the date of setting the maturity, but can be redeemed early if the conditions are met every six months, and its principal may be fully lost. For the instant product, the redemption was suspended due to the reasons that the holding company of the other party to the OTC derivatives transaction with respect to the instant product of Korea Asset Management applied for bankruptcy protection in the United States on September 16, 2008.

D. Since then, the plaintiff found the defendant as the written branch of the above bank working for the defendant, and the defendant found the defendant at his guest room, and on October 15, 2008, the defendant entered "02STR KW-8 on June 22, 2007, 02SW-8, 1008, 22 December 22, 2008" as the plaintiff, "WW-8, 2008." The plaintiff signed after the defendant's name, KimB.

[Ground for Fact-finding: Facts without dispute, entry of Gap evidence 1-1, 2-2, Eul evidence 1-4, results of verification of closed-circuit television recording data by this court, purport of whole pleadings]

2. Determination

A. Determination on the cause of the claim

According to the facts acknowledged above, the defendant prepared and delivered the above medal to the defendant on October 15, 2008, and agreed on December 22, 2008 between the plaintiff and the plaintiff to pay KRW 100 million with respect to the goods of this case (hereinafter referred to as the "agreement of this case"). Since the plaintiff seeks KRW 100 million with respect to the agreement of this case upon the claim of this case, the plaintiff is seeking KRW 100 million with respect to the agreement of this case, barring any special circumstance, the defendant shall pay the plaintiff the agreed amount of KRW 100 million in accordance with the agreement of this case.

B. The validity of the instant agreement

Article 52 subparag. 3 of the former Securities and Exchange Act (amended by Act No. 8635, Aug. 3, 2007; hereinafter the same) provides that "an act that interferes with the protection of investors or fairness of trading or undermining the credibility of securities business in connection with issuance, sale or other trading of securities" and "an act that is prescribed by the Presidential Decree" as being invalid. Article 36-3 of the former Enforcement Decree of the Securities and Exchange Act (amended by Presidential Decree No. 20947, Jul. 29, 2008; hereinafter the same) provides that "an act that is prescribed by the Presidential Decree" means an act falling under any of the following subparagraphs, and that is prohibited from being committed by a securities company or its executives or employees, and thus, constitutes an act that is contrary to the principle of fair investment and sale of securities or any other transaction of securities and that is committed directly or indirectly in excess of the limits set by the Financial Services Commission with respect to such transaction, and thus, constitutes a violation of Article 20 subparag. 36 of the former Securities and Exchange Act and Exchange Act. 20.

(1) Whether the defendant is an employee of a securities company

First, the defendant is an employee of a securities company under the former Securities and Exchange Act. The term "securities company" in the former Securities and Exchange Act is an employee of a securities company under the same Act (Article 2 (9) of the same Act). The person who is authorized to conduct the securities business shall be a stock company with permission from the Financial Services Commission for each type of business (Article 28 (1) of the same Act). Since the selling company under the former Indirect Investment Asset Management Business Act appears to have obtained permission for the securities business under Article 28 (1) of the former Securities and Exchange Act in relation to the sale of indirect investment securities (Article 26 (4) of the former Indirect Investment Asset Management Business Act), the company, which is a distributor under the former Indirect Investment Asset Management Business Act, is considered to be a securities company under the former Securities and Exchange Act. In relation to this case, the above legal provision is deemed to be a "stock company under the former Securities and Exchange Act as a stock company under the latter Indirect Investment Asset Management Business Act."

Therefore, the agreement of this case is null and void if it compensates all or part of the loss incurred in the transaction without any justifiable reason in connection with the sale and purchase or other transaction of securities.

(2) Whether the instant goods are securities

Next, the instant goods are “securities”. Securities under the former Securities and Exchange Act include 1 beneficiary certificates issued by an asset management company in accordance with the former Indirect Investment Asset Management Business Act (Article 2(1)9 of the former Securities and Exchange Act and Article 2-3(1)2 of the former Enforcement Decree of the Securities and Exchange Act). The instant goods are beneficiary certificates issued by the Korea Asset Management Corporation, an asset management company. Accordingly, the instant goods are “securities” under the former Securities and Exchange Act, and the sales of the instant goods by a stock company to the Plaintiff is “sale of securities” under the former Securities and Exchange Act.

(3) Whether to enter into an agreement to compensate for losses

In addition, the instant agreement provides that when the Plaintiff’s purchase of the instant product from the bank was discontinued, the Defendant, an employee of the said bank, paid to the Plaintiff the amount equivalent to the principal amount, and that the Defendant compensates the Plaintiff for all loss incurred by the instant product sold to the Plaintiff.

(4) Sub-determination

Therefore, the instant agreement is null and void in accordance with the former Securities and Exchange Act as an act by the Defendant, who is an employee of the Bank, regarded as a securities company, compensates the Plaintiff as a customer for all losses incurred in the instant transaction in relation to the sale of the instant product.

3. Conclusion

Therefore, the defendant is not obliged to pay KRW 100 million to the plaintiff under the invalid agreement of this case. Therefore, the plaintiff's claim is dismissed as it is without merit.