Choung Bank (Law Firm Spah, Attorneys Seo Jong-woo et al., Counsel for the plaintiff-appellant)

Mobilization Securities Co., Ltd. (Law Firm Sejong, Attorneys Yellow-ho et al., Counsel for the defendant-appellant)

January 25, 2002

Seoul District Court Decision 200Kahap65593 Delivered on April 20, 2001

1. The defendant's appeal is dismissed.

2. The costs of appeal are assessed against the defendant.

3. Paragraph 1 of the decision of the court of first instance was modified by the reduction of claims in the trial as follows.

The defendant shall pay to the plaintiff 1,028,869,671 won and 1,025,967,919 won among them, 6% per annum from August 18, 200 to September 22, 200; 25% per annum from the next day to the day of full payment; 2,901,752 won per annum from September 29, 200 to the day of full payment.

1. Purport of claim

It is same as the Disposition 3 (the plaintiff reduced the purport of the claim in the trial).

2. Purport of appeal

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

1. Basic facts

The following facts are not disputed between the parties, or evidence Nos. 1, 2, 3, 2 through 13, evidence Nos. 18, 19, 20, evidence Nos. 21-1, 22, evidence Nos. 1, 2-2, evidence Nos. 3-1, 3-2, 4-1, 6-2, Eul evidence Nos. 7-1, 7-1, 2, 8 through 13, evidence Nos. 14-1, 2, 15-1, 16, 17, evidence Nos. 18-1, 2, 18-2, 13-1, 2, 213-1, 20, 3-2, 3-1, 3-2, 3-1, 3-2, 3-2, 3-1, 3-2, 3-2, 3-1, 4-2, and 14-1.

A. Establishment of the instant investment trust

(1) Twelve short-term bond investment trust

On February 23, 1998, the non-party LG Investment Trust Operation Co., Ltd. (hereinafter referred to as LG Investment Trust Operation Co., Ltd.), which is a truster company operating an investment trust in accordance with the Securities Investment Trust Business Act, entered into a window short-term and bond securities investment trust contract with the non-party National Agricultural Cooperative Federation

(2) Samsung New and Short-Term Securities Investment Trust (A)-23

On March 23, 1998, the non-party Samsung Bio-investment Trust Operation Co., Ltd. (hereinafter referred to as the " Samsung Investment Trust Operation") that is a trust company that operates the management of investment trust under the Securities Investment Trust Business Act entered into a securities investment trust agreement with the Daegu Bank Co., Ltd. (A)-23 of Samsung Short-term Bonds and Debentures.

B. Purchase of the beneficiary certificates of this case

(1) Conclusion of a sales contract by the Defendant

The defendant is a selling company that sells beneficiary certificates in accordance with the Securities Investment Trust Business Act, and entered into a sales contract with each beneficiary certificate on November 11, 1998 with the above LG investment trust operation division and the above Samsung Investment Trust Operation division, and has sold the beneficiary certificates of each of the above securities investment trust from the point of time.

(2) Purchase of the Plaintiff’s beneficiary certificates

㈎ ‘LG중기1호채권’ 수익증권저축계약

On June 7, 1999, the Plaintiff purchased the said beneficiary certificates by receiving the beneficiary certificate deposit account (the line of savings was converted into the “te Commission short-term bond 1” on July 10, 2000; hereinafter, “LG mid-term bond 1” or “LG short-term bond 1” or “LG beneficiary certificates” on December 4, 1999 when concluding a beneficiary certificate savings contract with the respective amount of maturity fixed on December 4, 199.

㈏ ‘삼성신단기1호채권’ 수익증권저축계약

In addition, on July 19, 199, the Plaintiff purchased the above beneficiary certificates by receiving the beneficiary certificate savings account on the part of the Defendant (the above savings is changed from the fund separation of the next issue to the “G2sung New Bond 1” on January 10, 200, hereinafter referred to as the “short-term Bond 1”, and the maturity date as of August 18, 199, when entering into a beneficiary certificate savings contract with each of the fixed beneficiary certificates with the amount of KRW 20 billion as of August 18, 199, and the Defendant paid the deposit amount of KRW 19,579,242,08 units of beneficiary certificates as of KRW 19,579,248, beneficiary certificates as of KRW 19,00 from the Defendant.

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

㈎ LG수익증권에 대한 환매

① The Plaintiff filed a partial claim for redemption of beneficiary certificates after the maturity date of the said LG profit securities savings contract (re-investment of KRW 1,103,926,667, Nov. 13, 1999, and the number of units of beneficiary certificates increased by 20,510,097,830 units), the amount of KRW 1,003,910,000 as the redemption price for the 1 billion units of beneficiary certificates on December 8, 1999, and the amount of KRW 3,222,912,000 as the redemption price for the 3.2 billion units of beneficiary certificates on the 29th of the same month, and KRW 607,236,000,000 as the redemption price for the 6.6 billion units of beneficiary certificates on January 31, 200, KRW 7084,7084,8084,700 units of beneficiary certificates on the 1 billion units of beneficiary certificates, respectively.

② On April 27, 2000, the Plaintiff filed a claim for redemption against the Defendant for the entire share number of 13,931,213,388 units of the remaining beneficiary certificates. Accordingly, the Defendant paid KRW 13,937,49, a redemption price for the share number of 13,231,213,38 units of beneficiary certificates on July 10, 200, KRW 13,937,495,559 as a redemption price for the share number of 13,937,49 units of beneficiary certificates on July 10, 200, KRW 521,35,000 as a redemption price for the share number of 50,000 units of beneficiary certificates on the following day, and paid KRW 209,226,000 as a redemption price only on September 28, 200 after the instant lawsuit.

However, as of April 27, 200, the base price per 1,000 units publicly announced by the LG Investment Trust, a truster company, at the time of the above redemption claim, is KRW 1,031.31,00, when calculating the redemption price for the 200 million units out of the above beneficiary certificates 13,931,213,38 units, according to the base price, the above redemption claim amount is KRW 206,262,00 ( =20,000 units x KRW 1,031.31/1,000).

㈏ 삼성수익증권에 대한 환매

In addition, the plaintiff received 1,05,230,000 won from February 11, 200 upon receiving the claim for redemption of 1,000,000 won from the beneficiary certificates of February 11, 200 after the maturity date of the above Samsung Profit Securities Savings contract. On February 21, 200, the plaintiff filed a claim for redemption of 16,480,347 units, excluding the portion of treatment guarantee bonds, out of the remaining units of the remaining units of 18,579,242,08 units of 18,57,337 units of 200,000 units of 1,90,03,824,000 won as the redemption price for the 1.83 billion units of beneficiary certificates of February 24, 200, 2000 with the redemption price of 1,30,300,306,3008 units of non-performing loans, and 381,36385 units of 200.

However, as of February 21, 200, the base price for the 1,000 unit price publicly announced by the Samsung Investment Trust, a truster company, as of February 21, 200, is KRW 16,480,347,337 with regard to the above non-treatment portion, when calculating the redemption price for the share of 16,480,34,384 ( =16,480,347, x 1,037 x 1,031.31 / 1,000) according to the above base price.

(d) The separation of funds from Samsung New and Short-Term Bonds (A)-23 investment trusts;

(1) On the other hand, on July 19, 199, the restructuring policy for the Treatment Group was announced, due to the movement of large-scale redemption, insolvency of accumulated trust assets, etc., the securities investment trust industry was faced with liquidity crisis in the entire securities investment trust industry, and the investment trust industry had implemented the so-called “8.12 postponement of redemption” as to the portion of non-guaranteed and non-guaranteed bonds among trust assets, with the approval of the authority, with the approval of the authority. However, even after the aforementioned measure, the negative impact on the investment trust in the non-treated portion was spread to the general public, such as the difference in the real interest rate during the time and the close of the bond market.

Therefore, not only trust companies and selling companies, but also financial authorities requested beneficiaries who are financial institutions to refrain from claiming redemption of beneficiary certificates as much as possible with respect to non-treatment portion as possible. However, as a means of minimizing the loss suffered by beneficiaries of financial institutions due to the increase in the ratio of non-performing assets in trust property, financial institutions that hold more than 5 billion shares in bonds-type investment trust in which treatment bonds, etc. are included should allow the separation of funds.

(2) In accordance with the policy of the financial authorities, the Plaintiff, by the end of January 199, was entitled to the claim for redemption of the non-treatment portion of the instant Samsung Securities among the instant Samsung Securities, and applied for the separation of the Plaintiff’s beneficiary certificates into a single fund for only the Plaintiff’s beneficiary certificates on January 6, 200 for the purpose of improving the weight of the Plaintiff’s beneficiary certificates among the non-performing assets increased within the said Samsung New Securities and Debentures-23 investment trust. Accordingly, in the said Samsung New Securities and Debentures-23 investment trust, the funds of the Plaintiff’s “G23 New Securities and Exchange 1” were separated.

E. Depreciation of non-performing loans in the instant G2 Samsung short-term fund

(1) On the other hand, since the amendment of the Securities Investment Trust Business Supervision Regulations on April 1, 1998, the grounds for the redemption of delinquent bonds, among the bonds incorporated within trust property, have been prepared. In order to enhance the transparency and reliability of the operation of investment trust, the Financial Supervisory Service directed the truster company of all investment trusts to conduct a fair evaluation and external audit of trust property at the time of May 27, 200.

(2) On June 29, 2000, the above Samsung Investment Trust, the truster company of the investment trust of the instant G2TT short-term 1 bonds, was ordered by the Financial Supervisory Service to dispose of KRW 731,231,480 for non-performing loans, such as the Jeju Lease 89CB (private placement), the Korea Development Lease 1CB, the Korea Development Lease CP, the Hanmi Capital CB, the Hanmi Capital CP, and the Hanmi Capital CP, etc. on the basis of the depreciation rate determined by the Securities Evaluation and Conciliation Commission. On July 22 of the same year, the above Samsung 101,062,779 won for non-performing loans, and notified the Defendant, the distributor, of the result of the above disposal of the depreciation.

2. The parties' assertion

A. The plaintiff's assertion

The Plaintiff is a factual cause for the instant claim, and the laws and regulations of the former Securities Investment Trust Business Act (amended by Act No. 5558 of Sep. 16, 1998; hereinafter the same) apply to the redemption of the instant LG beneficiary certificates and Samsung beneficiary certificates, and the Defendant, a selling company, is obligated to immediately pay to the Plaintiff, a beneficiary, the entire redemption price calculated at the base price on the date of the instant claim for redemption. The Defendant asserted that, without special circumstances, without delay, the Defendant arbitrarily pays part of the redemption price and damages for delay on the ground of the redemption of claims within the trust property accrued thereafter,

B. Defendant’s assertion

In regard to this, even if the statutes and the terms and conditions of the former Securities Investment Trust Business Act apply to the redemption of each beneficiary certificate of this case, in light of the nature of the securities investment trust system, the function and contents of the redemption system, and the specific situation at the time of the claim for redemption of this case, the defendant merely takes charge of the role of paying the redemption price created by the partial termination of the investment trust from the truster company, and does not bear the direct payment obligation of the redemption price with its own property. Even if it is not so, the defendant performs its duty of redemption by dividing the redemption price calculated according to the new standard price that conforms to the real value of the trust property at the time of disposal of the trust property into the above and paying the redemption price in full.

(1) The securities investment trust is basically established by the legal relations between the truster company, the trustee company, and the beneficiary. The selling company is merely an agent who sells beneficiary certificates to the beneficiary with the delegation of the sales business of beneficiary certificates from the truster company, and is not obligated to pay the beneficiary price directly to the beneficiary's claim for redemption, which is the exercise of beneficiary certificates, apart from the truster company, the issuer of beneficiary certificates, and is merely in charge of the distribution company's role as a redemption counter for the beneficiary to receive the trust proceeds created by disposing of trust

(2) However, according to the relevant laws and regulations on redemption of beneficiary certificates under the former Securities Investment Trust Business Act, a selling company is allowed to pay a redemption price with its own property in response to a claim for redemption of beneficiary certificates, but it is only to the effect that the selling company has a defect in performing its function as a market developer that prevents the reduction of the capital of trust property and creates a beneficiary certificate market. Thus, it is not always compelling the selling company to allow the selling company to choose such redemption method for the convenience of customers, on the premise that the sale of beneficiary certificates, disposal of trust property, and fair evaluation of trust property can be conducted.

Furthermore, as in the case of each investment trust in this case, it is reasonable that the Defendant, as the selling company, did not immediately respond to the Plaintiff’s claim for redemption due to these circumstances, paid the redemption price in installments to the Plaintiff according to the standard price at the time when the cause for postponement of redemption ceased to exist, as seen above, since it goes against the principle of performance distribution and the principle of equality of beneficiaries to compel the selling company to repurchase its proprietary property under abnormal circumstances such as insolvency of certain securities within the trust property and the gap between the base price and net asset value, or delayed the sale of securities. Therefore, even if the procedure for postponement of redemption under the former Securities Investment Trust Business Act is not taken place, the obligation to repurchase by the selling company is naturally suspended until the disposal of securities within the trust property and the base price can be properly reflected in the real value.

(3) In particular, as seen above, G2 G2 new short-term bond investment trust of this case, which is separate from the fund as seen above, was a single fund that the beneficiary is the Plaintiff, and the process of redemption that conforms to the nature of the investment trust is the redemption by the “ partial termination of the trust.” In light of the fact that the process of redemption that conforms to the nature of the investment trust is the redemption by the “ partial termination of the trust,” the entire claim for redemption of the beneficiary certificates in the sole fund refers to the termination of the investment trust. Therefore, the investment trust is terminated and the issue of the repayment by the truster or trustee company after this is reached. In this case, the Defendant’s payment of the purchase price of Samsung short-term bond to the Plaintiff is the beneficiary of the redemption that was delivered by the truster company, and it does not perform its unique

(4) Other arguments

① Around December 200, the Financial Supervisory Service’s resolution plan for redemption of beneficiary certificates of financial institutions was announced as to the beneficiary certificates of financial institutions. According to this, with respect to the claim for redemption of Samsung Beneficiary certificates of this case, the Defendant, the selling company, on July 22, 2000, bears only the amount of KRW 67,408,874 (6.7%) excluding the Plaintiff’s portion of loss (3.3%) out of the amount of loss of KRW 101,062,779 incurred by the settlement of the above non-performing loans of this case.

② According to Article 7(4) of the former Securities Investment Trust Business Act, a selling company in receipt of a claim for redemption shall accept a claim for redemption within 15 days at the latest. Therefore, the Plaintiff’s claim for damages for delay for 15 days from the date of redemption of each of the above beneficiary certificates is without merit.

3. Determination

With respect to the redemption of the instant LG beneficiary certificates and Samsung Beneficiary certificates, each securities investment trust trust trust establishment date is prior to November 15, 1998, Article 2 of the Addenda of the current Securities Investment Trust Business Act, the Regulation on the Applicable Date of the Regulation on Beneficiary Certificates for Redemption under the Addenda of the amended Securities Investment Trust Business Act (Presidential Decree No. 16554 of September 15, 1999) and Article 7 of the Addenda of the amended Securities Investment Trust Business Supervision Act as amended on November 13, 1998, all of the redemption methods and determination of redemption prices are subject to the old Securities Investment Trust Business Ordinance and the terms and conditions of the former Securities Investment Trust Business Act, and there is no dispute over this point.

Therefore, I will look at the following issues: (a) based on the function and nature of the securities investment trust system, and the former Securities Investment Trust Business Act and the terms and conditions, the position and role of the selling company in the securities investment trust; (b) the content of the selling company’s redemption obligation; (c) the possibility of revising the redemption obligation and the redemption deferment

(a) Status of a selling company in a securities investment trust;

(1) Basic legal relations of securities investment trust

A securities investment trust is a type of collective investment organization that mainly invests in securities by using the legal system of “trust”. An investment trust agreement entered into between a truster company and a trustee company is formed between a truster company, a trustee company, and a beneficiary by participating in an investment trust agreement entered into by an investor as a beneficiary via the means of beneficiary certificates. The management of trust property is formed between a truster company, a trustee company, and an investor performs the management of trust property. An investor has the right to benefit given as beneficiary certificates, and the truster company receives a distribution of profit equally in proportion to the ratio of the beneficiary certificates to the account of beneficiary certificates depending on the performance of the trust property,

As such, the basic legal relationship of securities investment trust consists of the relationship between a securities investment trust and a trust company that establishes a trust and a trust company that manages and manages trust property and a beneficiary who exercises the right to benefit on beneficiary certificates. The contents of these rights and obligations are determined in accordance with the relevant Acts and subordinate statutes and terms and conditions, taking into account the trust elements of securities investment trust and organizational contractual elements.

(2) Status of the selling company

㈎ 판매회사의 등장 경위

The management company's business as an operator of a securities investment trust includes both the management of investment trust under Article 10 subparagraph 1 of the Securities Investment Trust Business Act (the creation and termination of an investment trust, the investment and management instruction of trust property, and other business incidental thereto) and the sales of beneficiary certificates under subparagraph 2 of the same Article (the public offering and sale of beneficiary certificates, the sale and redemption of beneficiary certificates, and other business incidental thereto). However, the management company's business was transferred to an investment trust management business and a beneficiary certificate sales business, which was implemented on August 11, 1995. As the management company's business was transferred to a management company newly established after 1996, only the investment trust management business was permitted for the management company and the existing management company was established for the conversion of the securities company and the establishment of a subsidiary company for the operation of the investment trust. The management company currently engaged in its business is limited to only the investment trust operation company permitted only for the investment trust operation business, and the sales business of beneficiary certificates is conducted only by the securities company and financial institution

㈏ 판매회사의 역할과 지위

(1) A selling company shall carry out the business of "public offering, sale and sale of beneficiary certificates, redemption, and other activities incidental thereto", etc. by concluding a trust company and a trust company for entrusted sale of beneficiary certificates pursuant to Articles 5 (5) and 10 (1) 2 of the Securities Investment Trust Business Act, and, in common, carry out the role of purchasing beneficiary certificates on behalf of the beneficiary and keeping the purchased beneficiary certificates on behalf of the beneficiary, by concluding

② The view on the legal status of the selling company performing the same role in the securities investment trust is that the selling company does not have any legal element related to the trust of the investment trust and is not a party to the investment trust contract, and is not a party to the investment trust contract, and is merely an agent or agent with delegation of the sales business of beneficiary certificates from the selling company, and (b) the operation business of the investment trust of the (i) management company is in the nature of the contract, and can be attributed to each other separately from the management business of the trust property and the sales business of beneficiary certificates through the investment trust contract, so it can be seen as a separate independent manager in charge of repurchase, and (ii) the selling company exercising considerable influence over the managers and the selling company that actually performs repurchase business as an agent of the management company does not properly reflect the substance of

③ The management of trust assets of a truster company in a securities investment trust can not be explained solely with the traditional legal relation of the trust. Specifically, the agreement between the parties participating in the investment trust or more specifically, is based on the intent of the truster company to become an authorized person for the benefit of beneficiaries, and thus, the parties participating in the investment trust should be deemed to be able to delegate only the sales business among the management of the truster company pursuant to another contractual agreement, to another independent party. In addition, such other contractual agreement is embodied, the beneficiary certificate sales entrustment contract and beneficiary certificate savings contract concluded between the truster company and the selling company based on the relevant laws and regulations of the Securities Investment Trust Business Act (in cases of simple sales, an investment trust statement including the main contents of the investment trust agreement). The parties agree to sell beneficiary certificates, and at the same time, participate in the investment trust plan established by incorporating the truster company and the trustee company into the terms and conditions of the investment trust, which are the basis for establishment of the investment trust. In light of the real situation of the securities investment trust, the parties participating in the investment trust shall be 70% or more directly linked with the beneficiary (beneficiary).

Furthermore, according to the contract for consignment sale of beneficiary certificates and the detailed agreement for consignment sale of beneficiary certificates concluded by the Defendant and Samsung Investment Trust with respect to the sales business of Samsung-type Samsung-23, the parties to the contract are not represented by each other (Article 2 of the above detailed agreement), and the Defendant, the selling company, is a selling company, such as performing its sales business on its own responsibility (Article 4(1) of the above contract) and paying the redemption price of beneficiary certificates on its own responsibility (Article 7 of the above detailed agreement).

Therefore, in full view of all circumstances such as the contractual nature of the investment trust operation and sales business in the securities investment trust mentioned above, the reality of the investment trust where the sales and sales business of beneficiary certificates are conducted only by the selling company, the role of the selling company to beneficiaries, and the contents of the beneficiary certificate sales contract, the selling company shall be regarded as an independent party who sells beneficiary certificates on its responsibility in the securities investment trust, and shall not be deemed as a mere agent of the truster company. The Defendant’s above assertion on this part is without merit.

B. Details of the obligation to repurchase by the selling company under the former Securities Investment Trust Act and the terms and conditions

(1) Redemption of two types of beneficiary certificates

Redemption of beneficiary certificates is a special system of investment trust that is planned to allow beneficiaries, who are investors, to freely recover the investment funds at any time even before the expiration of the investment trust. The truster company, etc. shall pay the beneficiary the prescribed redemption price according to the net asset value of the trust property only with the unilateral intent of redemption of the beneficiary.

그런데, 위탁회사 등이 환매대금을 지급하는 방법에는 두 가지가 있을 수 있는데, ①그 하나는 신탁의 일부를 해지하여 조성한 현금으로 환매대금을 지급하는 것으로(Redemption), 이 경우 환매된 수익증권에 표창된 수익권은 소멸하며 신탁재산의 규모도 환매분 만큼 줄어들게 되어 신탁재산의 안정적인 운용이 곤란해질 수도 있지만 운용손익의 수익자 귀속이라는 투자신탁의 기본원칙에 보다 부합하는 방식이며, ②다른 하나는 위탁회사 등이 자신의 고유재산에서 자신의 계산으로 환매대금을 지급하는 것으로(Repurchase), 신탁재산의 안정적 투자운용을 통한 자본적 성격의 유지 및 위탁회사의 시장조성자(market maker) 기능을 통한 자금시장에서의 유동성 제공이라는 목적 달성에 보다 효율적이지만, 미매각수익증권이 누적되고 신탁재산이 부실화되면 위탁회사 등의 고유재산에 커다란 손실을 초래할 위험성도 있는 방식이다(이하, ‘고유재산에 의한 환매’라 한다).

(2) Details of the distribution company's obligation to redeem

㈎ 구 증권투자신탁업법령과 약관의 규정

According to Article 7 of the former Securities Investment Trust Business Act, the beneficiary who is the holder of beneficiary certificates, in principle, claims for redemption to the truster company which is the issuer of beneficiary certificates, but in case of purchasing beneficiary certificates from the selling company, the beneficiary certificates must be claimed to the selling company, and the truster or the selling company which has received the claim for redemption shall repurchase within 15 days at the latest from the date of receiving the claim for redemption. Article 16 of each of the terms of each of the instant investment trust agreements provides for the same purpose as that of Article 7 of the same Act, and specifically states that “the truster or the selling company’s obligation to redeem the

In addition, Article 30 of the former Securities Investment Trust Business Act provides that "a truster company which has been permitted to sell beneficiary certificates to its own property may repurchase them with the beneficiary certificates, and if there is

㈏ 피고의 주장에 대한 판단

In regard to this, the defendant is merely an example of the reasons why the part of the trust can be terminated, and even if it is not so, it is invalid against Article 30 of the former Securities Investment Trust Business Act, which does not enforce redemption with its own property. Thus, it is possible to repurchase upon partial termination of the trust. In this case, the selling company is obligated to repurchase as it pays the termination amount received from the truster or the trustee company to the beneficiary. In particular, the selling company's imposition of the obligation to repurchase with its own property is contrary to the nature of the investment trust, which is the principle of performance dividend, to the extent that the base price is not reflected at all due to insolvency of the trust property, such as this case's investment trust.

However, it is difficult to interpret Article 12 of the former Enforcement Decree of the Securities Investment Trust Business Act as an example of reasons for partial termination of the trust, and the detailed matters concerning the redemption of beneficiary certificates are contractual factors determined by an agreement between the parties to the investment trust. In this case, the defendant's burden of redemption of beneficiary certificates as a selling company is based on the provisions of the investment trust agreement incorporated into the contents of the beneficiary certificate savings agreement in this case rather than on the above provisions of the Enforcement Decree. Thus, as long as the defendant has made a direct payment of the purchase price as the defendant's own property in the above terms and conditions, it is inevitable to assume such duty. Thus, the defendant's above assertion is without merit. However, as to the defendant's above assertion that there is an exceptional reason for not being able to pay the repurchase price according to the standard price on the date of the claim for redemption with inherent property at the

C. Whether the duty to repurchase in this case was corrected

(1) The nature of securities investment trust and the problems of the old redemption system

A securities investment trust is also dependent on the investment expert’s asset management and a single means of investment. Accordingly, the principle of performance distribution that belongs to all beneficiaries and the principle of equality of beneficiaries equally divided among many beneficiaries according to the transparent criteria for the number of units of beneficiary certificates. However, a number of general investors who are not fully involved in the management of trust assets participate in the securities investment trust as beneficiaries. Accordingly, a number of obligations are imposed on a trust company or a distributor to protect them. A securities investment trust can be established as a sound investment system only when it takes various measures to facilitate an investment of the general public and protect beneficiaries to the extent that it does not undermine the essence of an investment trust.

However, the former Securities Investment Trust Business Act prior to the amendment of the current law has caused losses to the selling company or the truster company by encouraging or neglecting the selling company or the truster company to bear the redemption obligation based on the base price calculated by the method of the account book with its own property under the circumstances where the securities distribution market has not been settled properly in a short period of time in consideration of the policy to foster the securities investment industry, and thereby inducing or neglecting the investors to assume the redemption obligation based on the standard price.

(2) The possibility of correcting the redemption obligation and the postponement of redemption system

㈎ 환매의무의 수정가능성

However, as seen earlier, the obligation to repurchase beneficiary certificates borne by the selling company or the management company is not a duty to naturally bear in the nature of the investment trust system, but a duty to collect investors' free investment funds and to maintain the stable capital nature of the trust property. In particular, it is allowed to the purport that the former Securities Investment Trust Business Act or the terms and conditions allow the management company or the distribution company to respond to the redemption of its own property to prevent the reduction of the capital of the trust property following the termination of the trust and to take charge of the function as the market developer who creates the beneficiary certificate market necessary for the acquisition or disposal of investors' beneficiary certificates.

Therefore, even if the former Securities Investment Trust Business Act or the terms and conditions recognize that a selling company or a selling company should repurchase beneficiary certificates at its own property with the base price calculated by the appraisal method, they shall be deemed to be premised on the company’s function as the market developer without difficulty, and that the base price is based on the normal situation where the trust property can be fully reflected in the net asset value of the trust property. Therefore, in exceptional circumstances where such premise is not met, i.e., large amount of claims for redemption of beneficiary certificates, and it is impossible to repurchase them with the trust company or selling company’s proprietary property due to a large amount of claims for redemption of beneficiary certificates, i.e., it is impossible to repurchase them with the trust company or selling company’s inherent property, and the difference between the base price and the net asset value of the securities investment trust is likely to undermine the essential nature of the securities investment trust, the content of the redemption obligation of the trust company or selling company shall also be deemed to be modified with the inherent nature of the securities investment trust.

㈏ 환매연기제도

However, in exceptional cases where a selling company is unable to perform the redemption obligation under the former Investment Trust Business Act and the terms and conditions of the contract, it is possible to consider two methods such as postponement of redemption and partial termination of the trust.

First of all, where it is impossible for a selling company to pay a redemption price for its proprietary property due to the situation of mass redemption scheduled under Article 12 subparag. 3 of the former Enforcement Decree of the Securities Investment Trust Business Act, or where it is unreasonable to enforce redemption with inherent property because the base price is not properly reflected in the net asset value of the trust property, the selling company may demand the beneficiary who requested redemption to notify such fact and demand the truster to terminate part of the investment trust and perform the redemption obligation by requesting the truster company to partly terminate the investment trust.

Next, in cases where the partial termination of the above trust alone causes extremely exceptional circumstances that make it difficult to maintain and operate the investment trust itself in a normal condition, the selling company may, directly or by the truster company, postpone the repurchase itself pursuant to the proviso of Article 7(4) of the former Securities Investment Trust Business Act. In other words, where there is any natural disaster, natural disaster, closure, suspension, closure of the securities market, or other inevitable cause, the redemption may be postponed with the approval of the Minister of Finance and Economy until such cause is resolved. However, the management company applying for approval of postponement of redemption shall attach a document stating (a) the grounds for delaying the redemption; (b) the postponement period; (c) the redemption measures after the postponement period; (d) other matters related to the protection of beneficiaries; and if the grounds for postponement of redemption are resumed due to the dissolution of the cause for postponement of redemption, the fact shall be reported

However, it is intended to protect beneficiaries by having the Minister of Finance and Economy decide and supervise whether the cause for postponement exists and the cause for postponement of redemption is resolved. If there is an imminent situation where the protection of beneficiaries or the existence of investment trust is endangered unless the postponement of redemption without delay occurs, it is possible to postpone of redemption without approval by the Minister of Finance and Economy, but it is reasonable to interpret that it is sufficient to report or notify the Minister of Finance and Economy of the details of postponement of redemption ex post facto. In this case, the approval of postponement of redemption by the Minister of Finance and Economy cannot be deemed as the validity requirement of the postponement of redemption, and it can be deemed as the confirmation basis to prevent abuse of the postponement of redemption.

(3) As to the redemption of the instant beneficiary certificates

㈎ 이 사건 LG수익증권 환매의 경우

First, in the case of redemption of the instant LG beneficiary certificates, according to the above facts of recognition, the defendant delayed the payment of the redemption price for not less than 2 months for reasons of liquidity shortage of the defendant, only after the plaintiff's claim for redemption of the instant LG beneficiary certificates, and it does not appear that there was any inevitable reason to cancel part of the trust or postpone the redemption as above for the plaintiff's claim for redemption, and that there was no inevitable reason to take such measures. Accordingly, the defendant's argument to the effect that the defendant's obligation to repurchase the instant LG beneficiary certificates was properly revised as being able

㈏ 이 사건 삼성수익증권 환매의 경우

Next, according to the above facts, the Plaintiff filed a claim for redemption against the Defendant immediately after the maturity date of the instant Samsung Beneficiary Certificate, and subsequently continued to delay the Defendant’s redemption obligation for a considerable period of time upon the request of the financial authorities to overcome the liquidity crisis of the investment trust industry before and after the “measures for Postponement of Redemption”. On January 6, 2000, upon filing an application for the separation of funds, the investment trust of “G2-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S

However, regardless of the plaintiff's separation of funds, the defendant still has paid the redemption price calculated as the base price at his own own property with respect to the claim for non-treatment portion claim of an individual and general corporation regardless of the plaintiff's separation of funds, and according to the evidence No. 18 and the evidence No. 11, it can be recognized that the plaintiff's separation of funds as above, applied the existing terms and conditions of investment trust to the fund separated from the plaintiff, and in particular, agreed to implement the method of appraisal of securities within the trust property or the method of payment of the redemption price in the same manner as the fund before the separation of the trust property, and according to the fact finding about the current Samsung Investment Trust Operation, the defendant does not appear to have created a redemption price by selling the trust property in installments after the claim for redemption in this case, and it cannot be recognized that the defendant added the trust until the partial termination of the corresponding trust before the payment of the redemption price was made by the plaintiff's claim for redemption in this case. In addition, the defendant only requested the plaintiff to repay the redemption price or other serious reasons for insolvency.

Ultimately, in full view of all the circumstances, such as the background and process of partial payment of the redemption price of this case, the intention of the parties to it, and equity with the general beneficiary, the Plaintiff’s claim for redemption equivalent to the number of 16,480,347,337 units of this case is difficult to deem that there was an abnormal ground for exception to which the obligation to repurchase in this case can be modified solely on the ground that there was a non-performing claim equivalent to KRW 832,294,259 out of the trust property. Moreover, even if such circumstance constitutes a circumstance where the Defendant’s obligation to repurchase in its proprietary property can be corrected, the Defendant did not take any of the above two exceptional measures, and thus, the content of the Defendant’s obligation to repurchase Samsung Beneficiary cannot be deemed limited to the scope of the amount of redemption amount actually paid. The Defendant’s assertion on this part is without merit.

D. As to the claim for redemption of all beneficiary certificates in a sole fund

Although it is clear that the Plaintiff’s claim for the redemption of Samsung 1’s Samsung 1’s instant Samsung 2’s claim constitutes a claim for the entire redemption of the beneficiary certificates for the non-treatment part of the G2’s new 3rd 1’s claim, as seen earlier, the seller’s obligation to repurchase under the former Securities Investment Trust Business Act, as a matter of principle, purchased beneficiary certificates with inherent property, and thus cannot be deemed as having been terminated immediately upon termination of the investment trust’s termination. Furthermore, in this case, according to the fact-finding findings as to the above Samsung 1’s claim for the redemption of the instant Samsung 1’s Samsung 1’s claim for the redemption of the instant Samsung 23rd 1’s claim for the redemption of the instant Samsung 1’s claim for the redemption of the instant Samsung 1’s payment of the redemption price after the Defendant’s payment of the redemption price in installments (this is the result that the Defendant purchased the instant beneficiary certificates from the Plaintiff and terminated the investment trust corresponding thereto as the unsale beneficiary certificates). As such, the Defendant’s allegation or remaining portion of the beneficiary certificates.

E. As to the binding force of the Financial Supervisory Service’s “resolution plan by type of redemption dispute”

In full view of the statement No. 5 and the fact-finding conducted by the court of first instance on the Financial Supervisory Service of the first instance, with respect to disputes arising between beneficiaries and truster companies of financial institutions who filed a claim for redemption at the time of December 200, but did not receive the redemption price as the base price, the Financial Supervisory Service prepared a "resolution plan by type of repurchase disputes" to arbitrate in the capacity of supervisory agencies of financial institutions. According to this, where a distributor or truster company redeems the non-guaranteed claim within an investment trust within a financial institution without the consent of the beneficiary of a financial institution, losses incurred before and after June 30, 200 shall be borne by the customer, and losses incurred by depreciation after July 1, 200 shall be borne by 33.3% by the truster company: 46.7% by the truster company: It is true that the above dispute resolution plan has been prepared by the Financial Supervisory Service on the basis of the binding force of redemption between financial institutions in order to stabilize the financial market as the supervisor of financial institution, so long as it does not reach the above legal agreement.

F. As to the defendant's delay liability

According to the former part of Article 7(4) of the former Securities Investment Trust Business Act, the Defendant, as the selling company of each of the instant beneficiary certificates, has the right to postpone the payment of the redemption price until 15 days after the date of redemption claim in principle (However, according to the terms and conditions of each of the instant investment trust agreements, 15 days grace period is allowed only when it is impossible to repurchase due to large-scale redemption situation).

However, examining the circumstances leading up to the conclusion and redemption of each of the beneficiary certificates savings contracts of this case, the plaintiff purchased each of the beneficiary certificates of this case for a short-term management of 6 months or 3 months for a large amount of funds worth 20 billion won (in particular, with respect to an investment trust of Samsung Short-Term Bonds (A)-23, two times prior to the purchase of Samsung Short-Term Bonds (A-23), and the defendant had suspended the obligation to pay the redemption price at the request of the defendant who was likely to cause liquidity shortage after the maturity of the redemption at the maturity of the request of the defendant. However, it is difficult to view that there was a ground for deferment of redemption under the terms and conditions of the investment trust of this case at the time of the plaintiff's claim for redemption, and there is no further reason to view that the defendant had the obligation to pay the redemption price of this case for the first five days prior to the date of the claim for redemption, as long as the defendant had already calculated the obligation to pay the redemption price on the same date.

(g) Appropriation of performance;

(1) Therefore, the defendant is obligated to pay to the plaintiff the price of KRW 206,262,00 of the redemption price based on the base price of April 27, 2000 for the number of shares of the LG beneficiary certificates of this case and the price of KRW 17,422,034,384 of the Samsung beneficiary certificates of this case based on the base price of February 21, 2000 for the number of shares of KRW 16,480,347,337 of the Samsung beneficiary certificates of this case and damages for delay after the above date.

(2) However, on September 28, 200, the Plaintiff received a redemption price of KRW 209,226,000 for the share of the LG beneficiary certificates of this case from September 28, 200. Therefore, KRW 5,865,752 from that date to September 28, 2000 for damages for delay (from April 28, 2000 following the above claim for redemption to September 28, 200, it is obvious that the delivery date of the copy of the complaint of this case is 6% per annum under the Commercial Act from April 28, 200 to September 22, 200, until September 28, 2000, KRW 203,360,248 from that date to that of the above claim for redemption to that of KRW 209,360,360,248 from that date to that of September 29, 200, the Defendant is obligated to pay the above redemption price to the Plaintiff at the above KRW 203630,2007.29.

(3) In addition, the Plaintiff received the payment of the purchase price for Samsung’s Samsung Beneficiary Certificates, KRW 1,903,824,00 on February 24, 200, KRW 1,300,000 on May 29, 200, and KRW 13,63,58,382 on August 17, 200 of the same year, and KRW 13,63,58,382 on August 17, 200 of the same year, and each of the above payments was made on the basis of the payment period. Accordingly, as described in the table below, the Defendant, as indicated in the table below, has the obligation to pay to the Plaintiff 6% annual interest under the Commercial Act from August 18, 200 to September 22, 200, and damages for delay at the rate of 25% per annum as stipulated in the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings.

On February 22, 200, 6% of the 3rd February 22, 200, 17,422,034, 384, 384, February 22, 200-2, 200, 6% of 8,591, 688, 803, 824,00 15,526,802,072,072, 6% of 242,473, 347, 300, 1469, 274, 275, 388, 208, 368, 298, 205, 200, 200, 30,000, 1469, 275, 278, 200, 388, 298, 2008;

4. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 1,028,869,671 won in total with the redemption price of this case and 6% per annum from August 18, 2000 to September 22, 2000, damages for delay with 25% per annum from the next day to the day of full payment, and damages for delay with the rate of 25% per annum from September 29, 2000 to the day of full payment, and damages for delay with the above LG redemption price of 2,901,752 shall be paid to the plaintiff at the rate of 25% per annum from September 29, 200 to the day of full payment. Accordingly, the judgment of the court of first instance is justified, and the defendant's appeal was dismissed as it is so decided as per Disposition (Article 1 of the judgment of the court of first instance as per Disposition 3).

Judges Jeon Jae-young (Presiding Judge)