(영문) 서울중앙지방법원 2017.4.11.선고 2015가합582818 판결

The Defendants jointly pay to the Plaintiff 7,69,753,760 won with 5% interest per annum from November 11, 2010 to the delivery date of a copy of the instant complaint, and 15% interest per annum from the next day to the day of complete payment.

Reasons

1. Facts of recognition;

A. Status of the parties

1) The Plaintiff has opened an account on January 12, 2010 and traded options profits by a company with the purpose of financial investment business, such as investment trading business, investment brokerage business, and collective investment business, as prescribed by the Financial Investment Services and Capital Markets Act (hereinafter “Capital Markets Act”).

2) Defendant B Bank is a foreign financial institution established under the Federal Republic of Germany Act that is comprehensively engaged in investment bank business, electronic financial business, and asset management business, and Defendant C Co., Ltd (hereinafter “Defendant C”) is a financial investment business entity under the Financial Investment Services and Capital Markets Act for the purpose of securities sale and purchase, consignment sale, etc., and is a domestic corporation established by Defendant B Bank to perform the financial investment business sector in Korea.

3) Defendant B Bank’s Hong Kong Branch Marginal Profit Trading Co., Ltd. (ASG) team leader and managing director; E is the same team director; F is the Hong Kong Branch Co., Ltd. in Defendant B Bank’s Hong Kong Branch Co., Ltd.; and G is the team leader and managing director of Defendant C’s stock derivatives sector.

B. Establishment of speculative tolerance by the Defendants

1) Prior to November 11, 2010, Defendant B Bank established a 12 synthetic gift sale method (the 12 synthetic gift price, total 19,480, nominal amount 2.9,855 billion won between the exercise price from 230.0 to 257.5) on November 201, 201, for the purpose of hedging the risk of synthetic futures trading OSP 200 index marginal profit.

2) Separate from the above Hague, Defendant C’s derivatives trading account (it does not go through the Suwon Center, which is an automatic order system for index marginal trading). On November 11, 2010, Defendant C Bank paid 470 million won at premium of 14:19:56 to 14:59:59, and sold put options 19,645 at the maturity of November 11, 205 at 255, and purchased put options 19,595 at 2550,000,000 won at 19,59,595, and purchased put options at 205,000,000,000 won at 205,000,000 won, 205,000,000,000,000 won, 205,000,000,000 won.

4) Unlike the above hedge, Defendant C purchased put option 2,640,000 won from the Defendant C Opening Account at a premium of 2010, 11, 111, and 13:41 to 14:41, and purchased put option 2,000 won at the 11-month exercising price. After the large volume sales volume of the Defendant B Bank was announced to the public, Defendant C purchased put option 2,55 won at the 255 exercising price. As the price of put option at the 14:49 price increase, Defendant C sold 40,000 won in total among the put option purchased at KRW 5,40,00 (the acquisition of profits of KRW 4,072,00) and simultaneously purchased put option 1,600 won at the 2555 exercising price at the immediately preceding time.

C. Large amount of shares sold by the Defendants

1) On November 11, 2010, Defendant B Bank sold an amount equivalent to KRW 2,373,141,602,30 on seven occasions at a price below 4.5% to 10.0% per hour immediately before the immediately preceding concurrent heading, at the price below 4.5% to 10.0% per hour) of the total number of shares of 198 items of 198 items of 2,373,141,602,300 items of 2,300 items of 2,373,300 items of 2,373,300 items of 2,300

2) On November 11, 2010, Defendant C submitted an order to sell the shares held by Defendant B Bank’s Hong Kong Branch, with an order to sell the shares at the same time, the amount equivalent to KRW 31.2 billion of H shares held in the account through the passive order system MK during seven times, and the amount equivalent to KRW 37.2 billion of I’s shares was KRW 69,336,785,000 in total at each market price over nine times.

3) The COSP 200 index was closed at the same time with 7.11 points (2.79%) lower from the immediately preceding 254.62 points to 247.51 points.

D. At the time of November 11, 2010, the Plaintiff was holding options as indicated in the separate sheet, but the said options were settled as the COS 200 index was closed with 247.51 points.

E. Progress of the investigation and investigation of the Defendants

1) The Financial Services Commission conducted an investigation with respect to the above COS 200 index fluctuation, and recognized that Defendant B Bank's Hong Kong Branch D, E, F, and Defendant C violated the Capital Markets Act by engaging in unfair trade through the current futures linkage manipulation, and issued a criminal complaint against the above-related persons and their employees, and issued a disposition of suspension from office and suspension of business operations for Defendant C.

2) On August 19, 201, the Prosecutor’s Office: (a) 3.7 billion won was found guilty on August 19, 201, as Seoul Central District Court 201 3.3 billion won; (b) 4.7 billion won was found guilty on November 11, 201; (c) 14:19:56 to 14:5 billion won was found guilty on the same day; and (d) 36.7 billion won was found guilty on the charges of Defendant 2’s simultaneous sale of 4.7 billion won at each of the 198 items owned by Defendant B Bank; and (e) 3.7 billion won was found to have been found to have been guilty on the charges of violation of 5 billion won’s penal provisions; and (e) 4.7 billion won was found to have been charged on the charges of 5 billion won was to have been charged at each of the 5.7 billion won shares at each of the 198 items of shares owned by Defendant C Bank; and (iii65 billion won was to have been sold at each of 370.7 billion won.5 billion won.

[Reasons for Recognition] Facts without dispute, entry of Gap evidence Nos. 1 through 7 and 19, and purport of the whole pleadings

A. Determination on the cause of the claim

1) Article 176(4)1 of the former Capital Markets Act (amended by Act No. 11845, May 28, 2013; hereinafter the same) provides that no one shall engage in an act of changing the market price of underlying assets of exchange-traded derivatives with an intention to earn unfair profits or cause a third party to earn unfair profits in trading listed securities or exchange-traded derivatives in connection with trading listed securities, and Article 177(1) of the same Act provides that a person who violates Article 176 of the same Act shall be liable for damages incurred by a person who traded or consigned to trade listed securities or exchange-traded derivatives at the price formed by such offense. This prohibits so-called “market price manipulation by linkage between the present and current markets” and provides for liability for damages in the event of violation.

2) According to the above facts, Defendant B Bank’s D, E, F, and Defendant C’s Hong Kong Branch established a speculative propagation on the price drop of 200 COS 200 KOS, and it is recognized that Defendant B Bank’s stock price index fells through mass sale of stocks at the same time at the end of the year and caused the Defendants to gain unjust profits from the trading of exchange-traded derivatives (hereinafter “instant market price manipulation”). Thus, barring any other special circumstances, the Defendants, as an employer of the above employees, are liable to compensate the Plaintiffs for damages incurred by the Plaintiffs due to the above acts under Article 756 of the Civil Act.

B. Determination on the statute of limitations defense

1) The parties' assertion

A) The defendants' assertion

Pursuant to Article 177(2) of the former Financial Investment Services and Capital Markets Act, the right to claim damages for market price manipulation in the instant case is extinguished when one year has passed since the claimant became aware of the fact that there was a violation of Article 176, and three years have passed since such violation, or three years have passed since the date when the claimant became aware of the loss and the perpetrator pursuant to Article 766(1) of the Civil Act.

On November 19, 2010, when there was market price manipulation in the instant case, the instant lawsuit was filed, and there was a press report on November 11, 2010, stating that “the 200 index fell rapidly due to the mass sale of shares by the Defendant.” Accordingly, on February 23, 2011, the Financial Supervisory Service and the Korea Exchange launched an investigation against the Defendants and made a decision on February 23, 201 that “the Securities and Futures Commission confirmed the Defendants’ employees’ manipulation, and decided to impose sanctions, such as filing a prosecution charge, a request for suspension of duty, and a suspension of business,” and the Plaintiff announced that “the Defendant’s employees and Defendant C were indicted for the charge of violating the Financial Investment Services and Capital Markets Act,” and the Plaintiff’s damages claim was extinguished after the lapse of the statute of limitations or the lapse of the period from November 1, 2010 to August 31, 2011.

B) The plaintiff's assertion

In light of the fact that media reports were made at the time of the instant market price manipulation or the investigation conducted with the Financial Supervisory Service, the Plaintiff’s perception that there was the existence of the Defendants’ illegal harmful act by the instant market price manipulation, the occurrence of damages, and the causal link between damages and losses, etc., by itself, cannot be deemed to have been recognized. In the prosecutor’s office on August 19, 201, even if the Defendants’ employees and Defendant C were indicted on the charge of violating the Financial Investment Services and Capital Markets Act on August 19, 2011, they denied the Defendants’ suspicion of market price manipulation, and even if the Defendant C was indicted on the charge of violating the Financial Investment Services and Capital Markets Act, they did not dispute the alleged market price manipulation, and the court’s decision with G and Defendant C was continued four years and six months, the Plaintiff cannot be deemed to have recognized the damages caused by the instant market price manipulation and the existence of the perpetrator at the time of the indictment. As the Plaintiff is deemed to have not yet been completed.

2) Determination

A) Article 766 of the Civil Act provides that "the time when the injured party or his/her legal representative becomes aware of the damage and of the identity of the perpetrator" shall be "the time when the injured party or his/her legal representative becomes aware of the damage and of the identity of the perpetrator" under Article 766 (1) of the Civil Act, which provides that "the time when the injured party or his/her legal representative becomes aware of the damage and of the identity of the tortfeasor" means the time when the injured party actually and specifically recognized the facts of the requirements of the tort, such as the occurrence of the damage, the existence of the illegal harmful act, and proximate causal relation between the harmful act and the occurrence of the damage. Whether the injured party should be deemed to have actually and specifically recognized the facts of the requirements of the tort, taking into account the various objective circumstances in each individual case and the situation in which the damage claim is practically possible (see, e.g., Supreme Court Decision 98Da30735, Sept. 3, 199

B) In light of the following circumstances, the aforementioned facts and the evidence Nos. 1 through 11 revealed by comprehensively taking into account the overall purport of the pleadings, it is reasonable to view that the Plaintiff actually and specifically recognized the Defendants’ losses caused by the Defendants’ tort around February 23, 201, where sanctions such as the request for disciplinary action and the suspension of business by the Securities and Futures Commission against employees of the Defendants who participated in the instant market manipulation and Defendant C.

(1) On November 11, 2010, on the same day, there was a report that the OS200 index was decreased due to the mass sale of shares that occurred at the Defendant C’s window, and on the 12th of the same month following the day, the Financial Supervisory Service started an investigation into whether the said mass sale of shares was unfair. Meanwhile, the Plaintiff could have sufficiently known the fact that the Plaintiff caused the Plaintiff’s loss of the Plaintiff’s option transaction due to the mass sale of shares that occurred from Defendant C through the said media on the day when the Plaintiff opened an account and traded options.

(2) After that, on February 23, 2011, the Financial Services Commission and the Financial Supervisory Service published the following contents: (a) as a result of the investigation conducted by the Financial Supervisory Commission on February 23, 201 by the employees of Defendant B Bank and its affiliate companies, the Securities and Futures Commission announced that the Defendants B Bank and its employees request the prosecution complaint against Defendant C and the employees of its affiliate companies and the disciplinary action of suspension from office for the regular directors of Defendant C Derivatives for six months; and (b) six months (from April 1, 2011, to September 30, 201) of the partial suspension of business operations against Defendant C (the suspension of securities transaction, exchange-traded derivatives transaction, and securities consignment transaction) for six months (from September 1, 2011, to September 30, 201). In light of the scope and contents of the media reports as seen above, the Plaintiff appears to have been unlawful as a market price manipulation.

(3) Following the aforementioned media reports, investors who suffered damages due to the instant market price manipulation began to file a lawsuit against the Defendants, and such facts were continuously reported through the media, and on August 19, 201, the prosecution officially announced that employees of the Defendants and Defendant C were indicted due to the market price manipulation suspicion under the Capital Markets Act, and then continued to file a lawsuit against the domestic financial institutions, insurance companies, and foreign investors. As such, the media reports on the aforementioned facts continued to have been filed immediately after the sanctions by the Securities and Futures Commission against the Defendants were imposed against the Defendants. However, it is difficult to readily understand that the Plaintiff was unable to recognize the illegality of the instant market price manipulation and the occurrence of damages therefrom, and there is no special circumstance that the Plaintiff could not exercise the right to claim damages objectively, even if there were no objective claims for damages.

C) Therefore, the statute of limitations for the Plaintiff’s right to claim damages against the Defendants ought to be deemed to run from February 23, 201. Since it is apparent in the record that the instant lawsuit was filed on December 31, 2015, the Plaintiff’s right to claim damages extinguished by the statute of limitations (the Defendant’s right to claim damages against the Defendants pursuant to Article 177(2) of the former Capital Markets Act, claiming that the statute of limitations expired after the lapse of three years from November 1, 2010, when the Plaintiff’s right to claim damages against the Defendants under Article 177(2) of the former Capital Markets Act, and as seen earlier, the statute of limitations expired for the Plaintiff’s right to claim damages against the Defendants pursuant to Article 766(1) of the Civil Act. Therefore, the said part is not separately

C. Determination as to the defendants' assertion that the defendants' defense of extinctive prescription constitutes abuse of rights

1) The plaintiff's assertion

The Defendants interfered with the formation of a fair price in the stock market through the instant market price manipulation, and caused enormous damages to the Plaintiff, a large number of ordinary individuals, and investors. This is a serious crime that disturbs the economic and financial order of the Republic of Korea. Therefore, in order to recover trust in the capital market in the future, the Defendants’ compensation for damages against the Plaintiff should be made, and the other investors who suffered damages like the Plaintiff receive or are expected to receive compensation through the relevant civil case. Accordingly, when receiving the Defendants’ statute of limitations defense, the Plaintiff would be remarkably unfair, unfair, or unfair without reasonable grounds compared to other investors. Accordingly, the Defendants’ defense of the statute of limitations is not allowed as it constitutes an abuse of rights.

2) Determination

A) The exercise of the right of defense on the grounds of extinctive prescription is governed by the principle of good faith and the prohibition of abuse of rights, which are the major principles of the Civil Act. As such, where there are special circumstances, such as: (a) the obligor has made it impossible or considerably difficult for the obligee to exercise his right or extinctive prescription prior to the completion of prescription; (b) such measures are unnecessary; (c) the obligor has acted to make it impossible for the obligee to exercise his right; or (d) the obligee has objectively obstructed the obligee from exercising his right; or (e) the obligor has shown the same attitude that the obligor would not use the statute of limitations after the completion of prescription; or (e) the obligor has made the right holder trusted it; or (e) other creditors have received the repayment of the obligation under the same conditions as the need to protect the obligee; and (b) the obligor’s refusal to perform the obligation is remarkably unfair or unfair, the obligor’s assertion for the completion of extinctive prescription cannot be allowed as an abuse of rights

B) According to each of the statements in Gap evidence Nos. 8-1 through 3, it can be acknowledged that the judgment of "the defendant" was sentenced in around 2015 and became final and conclusive as it was in the lawsuit claiming damages against the defendants around 2011, which was filed by investors who suffered losses due to the pertinent market price manipulation, and the defendant C was sentenced to imprisonment for 5 years in the criminal litigation (Seoul Central District Court 201Da1120) against G and the defendant C (Seoul Central District Court 201Da1120) and a fine of 1.5 billion won. However, in full view of the following circumstances, it is difficult to view that the defendants' assertion for the completion of the extinctive prescription constitutes abuse of rights against the good faith and good faith.

(1) The circumstances that the Defendants’ act constitutes a serious criminal act, and that the Plaintiff suffered a significant loss due to the Defendants’ act do not constitute an abuse of rights against the principle of good faith to claim the completion of extinctive prescription.

(2) There is no evidence to acknowledge that the Defendants’ exercise of rights or interruption of prescription became impossible or considerably difficult prior to the completion of prescription.

(3) The objective disability grounds for which the Plaintiff was unable to bring a lawsuit refer to cases where it is difficult for an obligee to expect an obligee to exercise his/her right when seen from the perspective of ordinary people, and thus, it is deemed that the obligee’s non-exercise of right can be deemed reasonable by social norms. In light of the fact that five insurance companies, such as Gaz Asset Management, Gaz Securities, National Bank, Chovas Securities, and LIG Damage Insurance, which suffered from the instant market price manipulation, filed a lawsuit against the Defendants in around 2011, and then, the Defendants’ employees, Defendant C’s employees, and individual investors, following criminal proceedings against Defendant C, filed a lawsuit against the Defendants around 201, it is difficult to deem that there was any circumstance for an obligee to expect the obligee’s exercise of right when seen from the perspective of ordinary people.

(4) There is no assertion or proof by the Plaintiff on the fact that the Defendants made it impossible or considerably difficult for the Defendants to exercise their rights or to extinctive prescription, or that such measures were unnecessary (no evidence exists to support that the Defendants either intended to compensate the Plaintiff without a separate litigation proceeding, expressed their intent to waive the claim for extinctive prescription, or expressed the same attitude that they did not invoke extinctive prescription even after the completion of extinctive prescription).

(5) In light of the circumstances leading up to the instant market price manipulation, the degree of damage caused by the instant market price manipulation, multiple domestic financial institutions, insurance companies, and foreign investors as well as the Plaintiff, among the victims, they suffered from the instant market price manipulation, and there are individual investors. The Plaintiff, as of September 2016, is a securities company with a large amount of assets totaling KRW 32.9,11 billion, total amount of total amount of total assets as of the end of 29,602.1 billion, total amount of total amount of liabilities, KRW 3,089 billion, total amount of capital, KRW 3,0899 billion, and the number of employees exceeds 2,383, there is no evidence to deem that other victims, other than the Plaintiff, actually received the payment of debt, and it is difficult to deem that it is remarkably unfair or unfair to recognize the Plaintiff’s refusal to perform the obligation.

D. Sub-determination

Therefore, the plaintiff's assertion of abuse of rights against the defendants' defense of extinctive prescription cannot be accepted. Thus, the defendants' defense of extinctive prescription is justified.

3. Conclusion

Therefore, the plaintiff's claim against the defendants of this case is dismissed in its entirety as it is without merit. It is so decided as per Disposition.

Judges

The presiding judge shall transfer the judge to another judge.

Judge Cho Jin-jin

Judge fixed-term

Note tin

1) Meanwhile, in the report of investigation by the Financial Services Commission, 199 shares held by the Defendant B Bank at the same time, including JJ 200 shares

2,442,40,00,000 won shall be charged for the shipment of orders for sale in seven installments at the price at which the same price at the end of the immediately preceding 4.5% lower than the immediately preceding price.

was written that it was.

2) The Korea Press, L, M, Press, N, Press, Press, Press, Q, Press, R, Press, Telecommunications, [the Press, V Press, Press, X Press, Press, Z media, AA speech

Introduction, AB Press, etc.

3) AC press, Qua press, P press, AD press, AE press, media, media, media, AF press, L media, AG press, V press, Y press, AH press, T press, AI press, M.

The theory, X press, U press, W press, media, AJ press, AK press, AL press, Z press, N media, AM press, AM press,N press, AO press, etc.

4) The said investor claimed damages against the Defendants pursuant to Articles 177(1) and 176(4)1 of the former Capital Markets Act.

The normal stock price index which would have been formed at the time of termination if there was no market price manipulation, and the stock price calculated by the above market price manipulation.

The amount of damages equivalent to the amount calculated on the basis of the difference in the index was constituted as the amount of damages. From November 2015, the claim for damages was made in the same case.

The decision of recommending reconciliation and the decision of the court of first instance was rendered to partially recognize the defendants' liability.

(5) ① On February 25, 2011, AM press, media, R media, AD press, Y press, media, etc.: The preparation for civil litigation of Gaz Asset Management.

② The N media, the AJ press, the AH press, the AP press, the R press, etc. on May 5, 2011: The 19 personal investors shall file a lawsuit report.

6) ① On August 23, 2011, the media, Agu Press, AG Press, AF Press, M Press, AD Press, etc. as of August 23, 201: The expansion of the lawsuit by individual investors after the prosecution is initiated by the prosecution.

② On October 4, 2011, the report on the filing of a lawsuit seeking damages by financial institutions (national banks), such as Qua press, AI press, R press, P press, AC press, etc.

③ On October 31, 2011, the media, Q press, AI press, etc.: A report on the first claim for damages filed by foreign investors (e.g., Vietnam).

(4) Q, N, etc. on November 11, 201: Domestic insurance companies (LIG damage insurance, Puz fire insurance, interesting marine insurance, interesting marine insurance, new life insurance, interest, etc.)

Five insurance companies, such as national life insurance, etc.) report on the filing of a claim for damages