Plaintiff (Law Firm LLC, Attorneys Kim Byung-sung et al., Counsel for the plaintiff-appellant)

KTB Asset Management Co., Ltd. (LLC, Kim & Lee LLC, Attorneys Kim In-man et al., Counsel for the plaintiff-appellant)

March 19, 2015

Seoul Southern District Court Decision 2012Gahap100860 Decided March 18, 2014

1. Of the judgment of the court of first instance, the part against the defendant in excess of the amount ordered to be paid below shall be revoked, and the plaintiff's claim corresponding to the above revocation

The defendant shall pay to the plaintiff 709,790,732 won with 5% interest per annum from July 15, 2014 to April 16, 2015, and 20% interest per annum from the next day to the day of full payment.

2. The plaintiff's appeal and the defendant's remaining appeal and the plaintiff's claim expanded in the trial are all dismissed.

3. (a) On the basis of an application for the return of provisional payments, the Plaintiff shall pay to the Defendant 152,252,076 won with 5% interest per annum from March 19, 2014 to April 16, 2015, and 20% interest per annum from the next day to the date of full payment.

B. The defendant's remaining provisional payment claim is dismissed.

C. The above paragraph (a) can be provisionally executed.

4. 80% of the total litigation costs (including the application cost for the return of provisional payments) shall be borne by the Plaintiff, and 20% by the Defendant, respectively.

1. Purport of claim

The defendant shall pay to the plaintiff 3,150,000 won with 5% interest per annum from July 4, 2008 to April 30, 2012, and 20% interest per annum from the next day to the day of complete payment (the plaintiff extended its claim to the court of first instance).

2. Purport of appeal

A. The plaintiff

The judgment of the court of first instance shall be modified as follows. The defendant shall pay to the plaintiff 3,150,000,000 won with 20% interest per annum from May 1, 2012 to the date of full payment.

B. Defendant

The part of the judgment of the first instance against the defendant shall be revoked, and the plaintiff's claim corresponding to the above revocation shall be dismissed.

3. Purport of request for the return of provisional payments

The plaintiff shall pay to the defendant 862,042,80 won with 5% interest per annum from March 19, 2014 to the service date of a duplicate of the application for the return of provisional payment of this case, and 20% interest per annum from the next day to the day of complete payment.

1. Basic facts

A. The status of the parties and the defendant's investment proposal

1) The Defendant was established for the purpose of asset management business, and established by the KTB-SB Private Equity Fund (PEF; hereinafter “instant private equity fund”) and became the general partner and the managing partner and the representative partner, and the Plaintiff is the limited partner who acquired the shares of the instant private equity fund.

2) On January 2006, the Defendant: (a) formed a consortium with Busan Mutual Savings Bank (mutual savings bank, Busan Savings Bank, Busan Savings Bank, Inc., Ltd., Ltd.; hereinafter referred to as the “Inbound Savings Bank”); (b) formed a strategic investor and decided to participate as a financial investor; and (c) established the Busan Mutual Savings Bank, the Defendant decided to establish a private equity fund and raise investors; (d) set up the instant private equity fund which is a limited partnership company under the Commercial Act, which serves as an executive partner, and (e) proposed an investment proposal (Evidence No. 3; hereinafter referred to as the “instant investment proposal”) as follows, and proposed an investment proposal against institutional investors, general corporations, and private investors:

(2) Sale of third party shares of the PEF to a third party within 2-3 years after the listing of the 3rd company's shares in the securities market or the KOSDAQ market [3rd party's 12.0% of annual average investment profits on the securities market or the KOSDAQ market] / [4] Estimated 12.0% of investment profits on the securities market or the KOSDAQ market at the early stage after the normalization of the 3rd party's sales of the 4th party's shares in the 4th party's shares in the securities market or the KOSDAQ market (M&A or the KOSDAQ market) / [3rd party's 4th party's 5th party's 2th party's 14th party's 16th party's 14th party's 16th party's 14th party's 16th party's 14th party's 5th party's 16th party's 3th party's 14th party's 14th party's 16th party's 1.

B. Establishment of the private equity fund of this case

The Defendant established the instant private equity fund on February 2, 2006 to become a general partner and a representative partner. The main contents of the articles of incorporation (Evidence A2) of the instant private equity fund are as follows.

Article 11 of the Table included in the main sentence of this Act (Limitation on the liability of members with unlimited liability) No general partner or his/her related persons shall be liable for any damages incurred by the company or other members due to any act related to the following subparagraphs (including omission): Provided, That this shall not apply where the said damages were caused by the intention or gross negligence of the company's general partner or its related persons; 2. Management of affairs of the company; 2. Where the company or its related persons participate directly or indirectly in the management of another company which owns stocks or shares, or in the conduct of its business and affairs, the company shall appoint the defendant who is the general partner; and the managing member shall represent the company with respect to external juristic acts. (1) The managing member shall faithfully perform his/her duties for the company pursuant to the Act and the articles of incorporation. (2) The managing member (including the officers and employees of the managing member with respect to subparagraphs 2 and 3) shall not perform any of the following acts:

C. Conclusion of the instant investment agreement

On February 3, 2006, the defendant entered into an investment agreement with the non-party 1 and the non-party 2, who is the major shareholder of the Busan Savings Bank and the Busan Savings Bank, for the acquisition of the Central Busan Savings Bank (the evidence No. 4, hereinafter referred to as the "instant investment agreement"), and the main contents are as follows.

(2) The purpose of the Busan PEF Agreement included in the main text is to ensure the participation of the Busan PEF in the acquisition and underwriting of the shares of the Central PEF in the acquisition and underwriting of the shares of the Central PEF Bank (hereinafter “subject company”) and to determine the necessary matters for the future repurchase of the shares to be held by the “PEF”. Article 2 of the Act is to ensure that the PEF shall be jointly and severally established within the scope of the total amount of 12,50,000,000 won (Won 12,50,000-) of the PEF Savings Agreement and to ensure the participation of the Busan PEF in the establishment and underwriting of new shares after the acquisition and underwriting of the shares of the PEF Bank. (1) The Defendant shall endeavor to ensure that the PEF would be jointly and severally liable for the acquisition and underwriting of the shares of the Central PEF Bank within the scope of the total amount of the PEF savings within the scope of 10% of the total amount of the shares subscribed Savings.

D. Acquisition of shares of the private equity fund of this case and acquisition of shares of the National Busan Savings Bank

Around April 2006, the instant private equity fund received KRW 5 billion (5 billion in equity), KRW 5 billion (5 billion in equity interest), KRW 2 billion in equity interest from the Seoul University Development Fund (hereinafter “Seoul University Development Fund”), KRW 2 billion from Nonparty 3 (2 billion in equity interest), and KRW 500 million from the Defendant, respectively. From April 2006 to June 2006, the instant private equity fund acquired shares 2,035,000 in the Central Busan Savings Bank (5.5% in equity interest) from April 2006, and the Busan Savings Bank acquired KRW 6,600,000 in shares of the Central Savings Bank.

On the other hand, on April 24, 2006, Nonparty 4, the Defendant’s employee, was appointed as director of the Central Busan Savings Bank (outside director), but resigned on April 24, 2009 (from August 31, 2007 to April 24, 2009).

E. Plaintiff’s acquisition of shares of the private equity fund of this case

Around April 207, 2007, Connmark Co., Ltd. (hereinafter “Connmark”) purchased 2.5 billion shares from the Development Fund of the Seoul National University in KRW 2,786,027,397 (hereinafter “instant equity shares”). On July 9, 2008, the Plaintiff purchased the instant equity shares in KRW 3.15 billion from Connmark.

(f) Bankruptcy of the central installment savings bank;

From 2009, the Central Installment Savings Bank received a disposition of business suspension from the Financial Services Commission for reasons of liquidity shortage on February 19, 201. On April 29, 201, it was decided as insolvent financial institution and received an order for business improvement such as business suspension, suspension of performance of duties of executives, and appointment of managers for six months. Afterward, the Central Installment Savings Bank filed a petition for bankruptcy with the Seoul Central District Court on January 201 (201Haucom2), and received a ruling of bankruptcy on February 23, 2012.

(g) Related lawsuits;

On July 14, 2011, the instant private equity fund filed a lawsuit against the Busan Savings Bank to claim KRW 12.5 billion of the purchase price of shares upon exercising put options (Seoul Central District Court 201Gahap72290). On August 16, 2012, the instant private equity fund was declared bankrupt on August 16, 2012 ( Busan District Court 201Hahap4). After that, the instant private equity fund revised its purport by asserting that “the instant private equity fund has a bankruptcy claim equivalent to KRW 2.3 billion within the scope of the total amount of agreed interest calculated at the rate of 12.5% per annum on the purchase price of shares.” The Korea Deposit Insurance Corporation, a trustee in bankruptcy of the Busan Savings Bank, appealed on May 24, 2013, but appealed on April 3, 2014 (Seoul High Court 2013Na4084, Apr. 23, 2014).

[Ground of recognition] Facts without dispute, Gap's entries in Gap's 1 through 9, 14, 18, 27, 33 (including each number; hereinafter the same shall apply) and the purport of the whole pleadings

2. Determination as to the establishment of liability for damages

A. The plaintiff's assertion

1) Violation of the duty to protect investors at the stage of investment recommendation

The Defendant recommended the Plaintiff to make an investment in an unfair manner in violation of the statutes and the articles of incorporation, and solicited the Plaintiff to make an investment. Furthermore, until October 2009, the Busan Savings Bank did not notify and explain the fact that it was unable to additionally acquire the shares of the Central Subsidiary Savings Bank held by the instant private equity fund due to the violation of the Securities and Exchange Act. The Busan Savings Bank was unable to implement the instant investment agreement due to the insolvency, or breached its duty of explanation by failing to notify and explain the risks caused by the insolvency of the Central Installment Savings Bank.

2) Violation of the duty to protect investors at the operating stage.

The defendant did not manage and supervise the insolvent of the Central Busan Savings Bank, which is a special purpose company, and did not take appropriate measures to recover investment money, such as put-in options for the recovery of investment money, even though he was aware of or could have been fully aware of the insolvency of the Central Busan Savings Bank and the Busan Savings Bank, thereby violating the duty of loyalty to asset management and the duty of care.

B. Determination

1) Whether there was a violation of the duty to protect investors at the investment recommendation stage

(A) unjust solicitation under an agreement to guarantee profit;

Article 14-11(2)2 of the former Indirect Investment Asset Management Business Act (repealed by Article 2 of the Addenda to the Financial Investment Services and Capital Markets Act, Act No. 8635, Aug. 3, 2007; hereinafter “former Indirect Investment Act”) provides that where the executive partner or managing partner of a private equity fund is a corporation, the executive officer or employee of the private equity fund shall not engage in any act of unfairly soliciting him/her to become a partner by promising to guarantee principal or a certain amount of profit, etc. In addition, Article 272(6)2 of the Financial Investment Services and Capital Markets Act (hereinafter “Capital Markets Act”) and Article 29(2)2 of the articles of incorporation of the private equity fund of this case also provide for the same purport.

However, according to the facts acknowledged above, the investment proposal of this case stated that the private equity fund of this case can exercise the right to sell its shares to the Busan Savings Bank at the price calculated by adding interest of 12% per annum to the investment principal, and stated that the major shareholders of Busan Savings Bank and Busan Savings Bank shall guarantee the principal and profit rate to the members of the private equity fund of this case. The investment agreement of this case concluded between the defendant, Busan Savings Bank and the non-party 1 and the non-party 2 can sell the shares of the Central Savings Bank held by the private equity fund of this case to the person designated by the Busan Savings Bank or Busan Savings Bank and the non-party 1 and the non-party 2 can not be seen as purchasing the principal and profit rate of 12.5% per annum of the principal and interest rate of 10% per annum with the non-party 2's promise to purchase the principal and interest rate of 10% per annum and the non-party 2's promise to purchase the principal and interest rate of 10% per 20% per annum.

B) Violation of duty to protect investors due to violation of duty to explain

An asset management company owes the duty of care to protect investors so that investors can make reasonable investment decisions based on the relevant information by providing correct information about the profit structure and risk factors of an investment trust to a selling company or investors. As such, in the event that an asset management company prepares and delivers a management plan for an investment trust to investors, it includes indications that may cause misunderstanding to investors as to important matters or information that has lost balance concerning the profit and risk of an investment trust. If it affects investors’ investment decisions, the asset management company cannot be deemed to have fulfilled its duty to protect investors at the stage of investment recommendation (see, e.g., Supreme Court Decision 2010Da76368, Jul. 28, 2011).

In light of the above legal principles, in full view of the following circumstances that can be acknowledged by comprehensively taking account of the facts acknowledged earlier and the statements in Gap evidence Nos. 4, 13, 25, 26, 27, 37, and 45, and the testimony of non-party 5 witness at the trial, the defendant violated the duty to protect investors at the time of investment recommendation by failing to provide the plaintiff with accurate information as to whether it is possible to exercise put options when soliciting the purchase of the shares in this case, thereby affecting the plaintiff's investment decision.

(1) The investment proposal of this case states that the principal and interest of the investment can be recovered by exercising put options to Busan Savings Bank from the time one year elapsed after investment. However, Article 10-2(4) and (5) of the former Mutual Savings Banks Act (wholly amended by Act No. 8143, Dec. 30, 2006; hereinafter "former Mutual Savings Banks Act") and Article 7(2) and [Attachment Table 2] of the former Enforcement Decree of the Mutual Savings Banks Act (wholly amended by Presidential Decree No. 19464, May 3, 2006; hereinafter "former Enforcement Decree of the Mutual Savings Banks Act") were not put to the Busan District Court until 30% of the total number of shares of the mutual savings banks until 30% of the total number of shares issued by the mutual savings banks, and even if those who intend to acquire more than 30% of the total number of shares issued by the Busan District Court or to become its major shareholder, the Busan District Court has not been punished by violating the financial related Acts and subordinate statutes for the last five years.

The Defendant asserts that the acquisition of shares without approval from the Financial Services Commission merely because Article 10-2 (4) and (5) of the Mutual Savings Banks Act merely provides that the acquisition of shares does not become null and void, and that the degree of violation of Article 7 (2) [Attachment Table 2] 1 (c) (1) of the former Enforcement Decree of the Mutual Savings Banks Act is excluded. According to Article 4 (1) of the investment agreement of this case, the instant private equity fund can exercise put options to third parties designated by the Busan Savings Bank, not only the Busan Savings Bank but also the Busan Savings Bank. Thus, the Defendant’s assertion that the instant private equity fund did not violate its duty to explain because it was not legally impossible to exercise put options to the Busan Savings Bank. However, the Defendant’s assertion that the Plaintiff’s use of put options to the Busan Savings Bank’s private equity fund, which was the most fundamental and safe method to recover the instant private equity fund’s investment shares, could not be approved by the Financial Services Commission until the Busan Savings Bank’s use of the Securities and Exchange Act.

(2) The defendant's strategic investment team employees stated that the non-party 4, who worked for the defendant's strategic investment team employees, was subject to sanctions for violation of the duty of disclosure by the Busan Savings Bank on the grounds that it was unable to obtain approval from the Financial Supervisory Commission, and thus, the non-party 2, etc. of the Busan Savings Bank requested the defendant's representative director to make an investment to the non-party 6, and the non-party 2, who was an executive officer of the Busan Savings Bank, intended to acquire the central installment savings bank. However, the non-party 2, who was an executive officer of the Busan Savings Bank, was punished for violation of the Securities and Exchange Act, etc. on October 2004 and did not have to take over the central installment savings bank. Thus, it seems that the defendant's representative director and the non-party 6, who was the executive officer of the private equity fund, knew that the non-party 1 and the non-party 2, who was the defendant's representative director of the Busan Savings Bank, did not know that the non-party 1 and the Busan Savings Bank were the defendant's representative director.

(3) Nevertheless, the Defendant’s representative director or the person in charge did not confirm whether there are grounds to support the horses of Nonparty 1 and Nonparty 2, the representative director or the major shareholder of the Busan Savings Bank, and did not collect objective information, emphasizing that when one year has passed since the date of establishment of the instant private equity fund, when recommending investors and the Plaintiff to purchase the instant equity shares, the private equity fund of this case can be guaranteed the principal and interest of 12% per annum by exercising put options against the Busan Savings Bank. In particular, it did not mention whether it is possible to perform put options, which is the other party to put options, by giving a copy of the instant investment agreement, the principal and yield are guaranteed by guaranteeing or promising the major shareholder of the Busan Savings Bank and its major shareholder.

(4) The Plaintiff purchased the instant equity shares acquired by the Seoul National University Development Fund, not directly from the Defendant. However, the Defendant issued the instant investment proposal stating that the principal and an earning rate should be guaranteed by recommending investment from the Seoul National University Development Fund that acquired the equity shares of the instant private equity fund, Nonparty 3, etc., and the Plaintiff provided explanation that the principal and an earning rate should be guaranteed upon accepting the instant equity shares from the seller’s contact loan. Nonparty 7’s director, Nonparty 4, and Nonparty 8, at the Defendant’s office, the Defendant’s director, and the director Nonparty 8, can sell the shares of the Central Busan National Savings Bank held by the instant private equity fund to the person designated by the Busan National University Development Fund or the Busan National Savings Bank. However, even if the Busan National Savings Bank did not provide the Plaintiff with an explanation of the investment agreement and the annual rate of return on the purchase from the Plaintiff’s bank, it is difficult to conclude that the Plaintiff did not directly deliver the investment agreement and the annual rate of return on the purchase to the Plaintiff.

2) Violation of the duty to protect investors at the operating stage.

Article 144-11(1) of the former Indirect Investment Act provides that the managing member shall faithfully perform his/her duties for a private equity fund in accordance with the statutes and the articles of incorporation. Article 144-7(1) of the same Act provides that the managing member shall manage the property of the private equity fund by investing in a manner that makes it possible to exercise de facto control over the major management matters of the invested company, such as appointment and dismissal of executive officers. Meanwhile, Articles 28 and 29 of the articles of incorporation of the private equity fund of this case provide that the managing member shall take charge of the management and operation of the company's property, select the executive officers dispatched or appointed to the invested company

In full view of the above provisions, the following circumstances can be comprehensively considered as follows: (a) the facts acknowledged as above and the evidence Nos. 3, 19, 20, 21, 22, 23, 25, 32, 34, 37, and 40; (b) the evidence Nos. 3, 5, and 13; and (c) the testimony of Non-Party 5, the witness at the trial, as a whole, can be acknowledged by comprehensively considering the overall purport of the pleadings; (d) the Defendant, as an asset management company and the executive partner of the instant private equity fund, breached the duty of care to manage and supervise the central bank and the Busan Savings Bank; (e) the Defendant breached the duty of care to manage and supervise the financial situation of the put-in savings bank and the Busan Savings Bank, the other party to put-in options, as stated in the instant investment proposal and the Investment Agreement; and (e) the Plaintiff breached the duty of care to protect investors at the stage of such violation.

A) The Defendant presented the instant investment proposal, investment agreement, etc. to the investors of the instant private equity fund, as a means of recovering the principal and interest of the instant private equity fund, sold to a third party who presented an amount exceeding 12% per annum the right to sell the stocks of the central saving bank to the Busan District Savings Bank, the right to normalize the central saving bank, and then sold to a third party who opened the central savings bank to the securities market or the KOSDAQ, and then collected the principal and profits by listing it to the securities market. As such, it is reasonable to view that the Defendant, as the managing partner of the instant private equity fund and the managing partner of the central savings bank, manages and supervises the operation and financial situation of the central savings bank for the normalization of the central savings bank and the third party's sale or listing through the normalization of the central savings bank and the securities market, and bears the obligation to put put to cash options

B) The Busan Busan District Savings Bank had a PF loan amounting to approximately KRW 180 billion to the SPC established under the name of major shareholders and management of the Busan District Bank for real estate implementation projects. The Busan District Savings Bank extended illegal and non-performing loans, such as lending of approximately KRW 7.5 billion to the Busan District Savings Bank’s major shareholders, etc. in relation to the project with respect to the development project of Cambodia, and lending of the PF loan amounting to approximately KRW 7.5 billion to the Busan District Savings Bank, but it did not provide a method of avoiding the risk of collecting loans due to business failure. Although long-term loans and the maturity of the loans have considerably increased, the number of loans that have not been recovered was considerably increased, the director of the defendant, who was appointed to manage and supervise the Central District Savings Bank, did not participate in the board of directors of the Central District Savings Bank or receive business reports. After the resignation of the defendant on April 4, 2009, the director of the Busan District Savings Bank failed to prepare and supervise the financial statements and supervision of the Central Savings Bank, etc.

C) The instant investment proposal and the instant investment agreement are 1 year after the establishment of the instant private equity fund, so that investors including the Plaintiff can recover the instant amount of money by the most fundamental and safe method. As such, the Defendant, who is an executive partner, was able to exercise put options in accordance with the above 30-year financial order and investment agreement, 2000 Busan Bank’s financial order and 30-year financial order and investment option, which were presented as a way to guarantee the principal and interest of the instant investment proposal and investment agreement, and the Busan Bank’s financial order and 10-year financial order and 10-year financial order and 30-year financial order and 10-year financial order and 10-year financial order and 10-year financial order and 20-year financial order and 30-year financial order and 10-year financial order and 100-year financial order and 300-year financial order and 10-year financial order and 200-year financial order.

3) Sub-decisions

Therefore, the defendant is obliged to compensate for damages suffered by the plaintiff due to the violation of the duty of loyalty and duty of care at the stage of investment recommendation and asset management at the stage of investment recommendation.

3. Determination on the scope of damages

A. Calculation of damages

1) Whether a tort has actually occurred or not should be determined in light of social norms. In addition, when there is time interval between the time of the illegal act and the time of the damage occurrence, damages for damages caused by the illegal act shall accrue from the initial date of the damage compensation liability. The amount of damages sustained by an investor due to the violation of an asset management company’s duty to protect investors under the former Indirect Investment Act is the amount calculated by subtracting the total amount of money recovered or recoverable from the investment principal based on the beneficiary certificates acquired from the investment principal and, barring any special circumstance, the amount recoverable here becomes final and conclusive when it is possible to calculate the remaining value of beneficiary certificates as of the date of redemption, and thus, it is reasonable to deem that the damages suffered by an investor were the initial date of the damage compensation for damages caused by the illegal act as at the time of actual and conclusive occurrence (see Supreme Court Decision 2012Da29649, Jan. 24,

2) According to such legal principles, the Plaintiff’s total amount of KRW 3,150,00,00 for the acquisition of the instant equity shares x 20.5 billion x 7.6% of the total amount of KRW 70% for the instant private equity fund x 20,27,27, 29, and 30 of the instant amount of KRW 7.6% of the instant amount of KRW 7.6% of the instant amount of KRW 75% of the instant amount of KRW 7.6% of the instant amount of KRW 7.6% of the instant amount of KRW 7.6% of the instant amount of KRW 75% of the instant amount of KRW 70,57 of the instant amount of KRW 70,57 of the instant amount of KRW 80,67 of the instant amount of dividends x 706% of the instant amount of dividends x 206% of the instant amount of KRW 75% of the instant amount of dividends x 36% of the instant amount of the instant amount of dividends 24.6% of the instant amount of dividends

However, the Plaintiff received dividends of KRW 37,568,036, Sep. 15, 2014, prior to confirmation of damages at KRW 3,150,00,000 for the instant investment amounting to KRW 37,568,036, the Plaintiff paid dividends of KRW 37,568,036, which was already paid as of July 15, 2014, and KRW 1,37,474,476,831, which was deducted from the remaining value of the instant investment shares owned by the Plaintiff, which is anticipated to be paid in the future by the Plaintiff (=37,568,036 - 37,568,036 - 1,37,95,133, which was actually paid by the Plaintiff after the foregoing base date, does not deduct the remaining value of the instant investment shares that were actually paid by the Plaintiff).

3) As to this, the Defendant asserts that the damages suffered by the Plaintiff due to the Defendant’s tort shall be calculated based on the Plaintiff’s purchase price of KRW 3,150,00,000, not the Plaintiff’s purchase price with interest of KRW 12% per annum in the initial acceptance price of equity shares. However, there is no ground to deem that the Plaintiff’s purchase price was unfairly excessive. As seen earlier, the damages suffered by the Plaintiff are the amount obtained by deducting the amount recoverable or recoverable from the investment principal of the investor’s investment, and the Defendant’s assertion is without merit.

B. Limitation on liability

However, the following circumstances, which are acknowledged earlier and the statement in Gap evidence No. 46, comprehensively based on the purport of the pleadings, namely, ① the estimated return rate of investment expected to be invested in a private equity fund is to have a high investment risk inevitably exists in that it seeks an average return of 12% per annum. Such investment risk, in principle, is to be borne by the plaintiff who is an investor. ② The articles of incorporation of the private equity fund of this case are erroneous that the management partner is prohibited from soliciting the acquisition of equity shares by means of an agreement guaranteeing principal and an earning rate based on the terms of conduct, and thus, the principal and an earning rate are also guaranteed. ③ The plaintiff acquired the equity shares of this case from the Seoul University Development Fund and the contact loan, and ③ The plaintiff acquired the equity shares of this case by transfer from the Seoul National University Development Fund and the contact loan, as well as the defendant's explanation that the principal and earning rate are guaranteed, and the redemption agreement of the contact loan seems to have an impact on the purchase of the plaintiff's equity shares, and thus, it is reasonable to limit the amount of damages suffered by the defendant.

C. Sub-decision

Therefore, the defendant is obligated to pay to the plaintiff 709,790,732 won (i.e., 1,774,476,831 won x 40%) and damages from July 15, 2014, which can be deemed to have actually and definitely occurred after maturity to the plaintiff, with 5% per annum prescribed by the Civil Act until April 16, 2015, which is the date when the judgment of the court is rendered at a reasonable time, and 20% per annum prescribed by the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings from the next day until the day when full payment is made (the plaintiff further claims that the damages for delay should be calculated from July 4, 2008, when the plaintiff acquired the shares in this case at a time interval between the time of the illegal act and the time of damages, the damages damages for illegal act should be calculated as the initial date of calculation, and in this case, the damages shall be deemed to have been actually and definitely incurred by the plaintiff.

4. Determination as to the defendant's application for the return of provisional payments

As seen earlier, since the judgment of the court of first instance partially changed in the trial, the sentence of provisional execution of the court of first instance was partially invalidated by this judgment. However, according to the evidence Nos. 23-1 and 2-2 of this judgment, it can be recognized that the Defendant paid the amount of KRW 862,042,80 (= Principal KRW 787,500,500 + interest KRW 74,542,808 + interest KRW 742,808) on March 19, 2014 based on the sentence of provisional execution of the court of first instance, it can be recognized that the Defendant paid the amount of KRW 709,790,790,732, and the base date for calculating damages for delay of the above amount was after the date of provisional payment, the Plaintiff is obligated to return the amount of provisional payment to the Defendant by 152,252,076 won (=862,080,709,709,79, and 24.1.25) per annum from the date of the above judgment of 21.31.

5. Conclusion

Therefore, the plaintiff's claim of this case is justified within the above recognized scope, and the remaining claims are dismissed for lack of merit. Since the part against the defendant ordering payment in excess of the above recognized amount among the judgment of the court of first instance is unfair with different conclusions, it shall be accepted partially by the defendant's appeal, and it shall be revoked, and the plaintiff's claim corresponding to the above revoked part shall be dismissed. The plaintiff's appeal, the remaining appeal by the defendant, and the plaintiff's claim extended in the court of first instance shall be all without merit, and they shall be dismissed for reasons within the above recognized scope, and the defendant's claim for provisional payment shall be accepted within the above recognized scope

Judges Ei-Man-gu (Presiding Judge) and the highest order