(영문) 서울고등법원 2015.11.19. 선고 2015나8867 판결

1. The part of the judgment of the court of first instance, excluding the part finalized by the judgment of remand (Supreme Court Decision 2014Da17220 Decided February 26, 2015), against the remainder of the defendant, shall be revoked, and the plaintiff's claim against the defendant corresponding to the revoked part shall be dismissed.

2. All costs of the lawsuit shall be borne by the Plaintiff.

Purport of claim and appeal

1. Purport of claim

The defendant shall pay to the plaintiff 8,869,669,507 won and the amount calculated by the ratio of 6% per annum from October 7, 2008 to the service date of a copy of the complaint of this case, and 20% per annum from the next day to the day of complete payment with the joint defendant glass Asset Management Co., Ltd. to the plaintiff.

2. Purport of appeal

A. The plaintiff

Of the judgment of the court of first instance, the part against the plaintiff seeking payment is revoked. The defendant shall pay to the plaintiff 6,304,876,618 won with 6% per annum from October 7, 2008 to the service date of a copy of the complaint of this case, and 20% per annum from the next day to the day of complete payment.

B. Defendant

The same shall apply to the order.

3. Scope of trial of the court of first instance after remand.

The trial prior to the remanded the plaintiff's claim against the defendant, which partly accepted the plaintiff's claim against the defendant (2,564,792,889 won and damages for delay thereof). The part of the judgment of the first instance against the defendant (1,489,449,661 won and the part in excess of damages for delay) was revoked, and the plaintiff's claim against the defendant corresponding to the cancelled part was dismissed. The defendant only appealed against the defendant, and the judgment of remanded the judgment prior to the remand reversed the part against the defendant (1,489,449,661 won and damages for delay) of the judgment of the first instance against the defendant.

Therefore, the appeal by the court of the first instance after remand is limited to the part against the defendant among the judgment of the court of the first instance before remanding the final judgment, and since the remaining part of the judgment before remanding by the judgment of the court of the first instance excluding the part against the defendant is already finalized, the appeal by the plaintiff is no longer subject to the judgment after remand.

Reasons

1. Basic facts

The court's explanation on this part is the same as the corresponding part of the reasoning of the judgment of the court of first instance, except for the dismissal or addition of the "basic facts" as follows. Thus, this part is cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

The 'Defendant Free Asset Management Co., Ltd.' or 'Defendant Free Asset Management Co., Ltd.' or 'Defendant Free Asset Management Co., Ltd.', and the 'Defendant Hyundai Securities Co., Ltd.' are different from the 'Defendant'.

○ The 'Evidence Nos. 12, 13, and 14' between the second and the 16 lines are raised as 'Evidence Nos. 12, 14, and 19 through 27'.

○ up to 2 lines 11, 2, 13 and 2 shall be deleted as follows:

[1] On April 2, 2008, SPC entered into a contract for the issuance and underwriting of the Promissory Notes amounting to KRW 9 billion with the Korea Exchange Bank, a trustee company and underwriter of the Fund (hereinafter “instant bill”). The contents related to the instant case are as follows: the issuance and underwriting of the Promissory Notes; and the issuance and underwriting of the instant bill are as follows.

[Issuance and Acceptance of the Bill of this case]

Article 1 Definitions

1. The term "executive secretary" means our news, which is an executive secretary on the Work Convention for the Large Week;

11. The term "joint guarantor" refers to B, E, and H in general.

16. The term "asset security lender" means the social welfare that has occurred in Korea and his/her successor;

20. “Aircraft Engine” means an engine (referring to the Spain engine in this case; hereinafter referred to as “the Spain engine”) listed in Appendix 3.

Article 3 Use of Acceptance Price

An issuer (hereinafter referred to as the “SPC”) shall use the acquisition price only for the purpose designated by the issuer for repayment of existing loans and other underwriters (hereinafter referred to as the “Korea Exchange Bank”). For any matters arising from the use by SPC for purposes other than the above purpose, SPC shall fully assume all responsibilities.

Article 5 Conditions Precedent

The obligation of the Korea Exchange Bank to pay each time of acceptance to SPC shall be prior to the fulfillment of the following requirements:

5. That the pledge rights of contribution shares, pledge rights of deposit in asset management accounts, security agreements of aircraft engines, agreements on loans for consumption, trust contracts, or other procedures for providing security have been completed (excluding the condition of withdrawal, the time limit of withdrawal, or the conditions of payment after withdrawal) under Article 11.

Article VIEx Post Facto Conditions

SPC shall fulfill the following conditions after the date of issuance of the first bill:

6. SPC shall, in accordance with the laws and regulations of Korea or Thailand, have an aircraft (referring to the aircraft in this case; hereinafter referred to as the “aircraft”) set up a collateral security (the maximum amount of the claim: 130% of the total amount of the acquisition price for each time) with respect to the Korea Exchange Bank and the property collateral lender jointly with a first priority mortgagee within six months from the date of issuance of the first bill.

7. SPC shall complete the repair of the aircraft of this case (including replacement of the instant body engine at the pre-approval level by an asset management company (hereinafter referred to as “pare asset management company”) within six months from the date of the first bill of exchange, and deliver the aircraft of this case to the lessee of this case.

8. SPC shall require the lessee of the instant aircraft to commence operation of the instant aircraft within six months from the date of the first bill of exchange.

Article XISecurity

1. SPC shall set up a security interest in the instant Spanish engine held by SPC in the form and content satisfactory to the free asset management within two months from the date of issuance of the first bill with respect to the grant of a security interest in the Korea Exchange Bank and a lender of assets security.

3. SPC shall complete the registration of ownership of the aircraft of this case within 6 months from the date of issuance of the first bill, and set up the first-class collateral security (130% of the total amount of the acquisition price of each bond: 130% of the total amount of the acquisition price of each bond) with respect to the aircraft of this case, the Korea Exchange Bank and the assets collateral lender as joint collateral security holders.

7. SPC shall conclude an agreement on a loan for consumption with respect to money in a satisfactory form and content between B and E in preparation for any shortage of funds, etc. of SPC prior to the date of the first issuance of the first bill.

8. SPC shall submit to the executive secretary a joint and several guarantee form and content satisfactory to glass asset management before the date of issuance of the first bill, which the joint and several guaranteer shall perform the secured obligation, to the executive secretary;

2) On the date of issuance of the Promissory Notes and conclusion of the underwriting contract, SPC entrusted the Aircraft Rent Claim and the rights incidental thereto to the Korea Exchange Bank to the Korea Exchange Bank, and SPC concluded an asset-backed loan agreement with the Korea Exchange Bank, which is a profit from the first-class beneficial interest arising from the trust, and a trust agreement with the Korea Exchange Bank to repay each principal and interest arising from the issuance of the Promissory Notes and the underwriting contract (hereinafter “instant trust agreement”). Of the instant trust agreement, the contents relating to the instant case are as follows.

[Entrustment Contract of this case]

Article 4 Management and Payment of Asset Management Accounts

(3) If necessary for the payment of any of the following items, an entrusted business operator of the Korea Exchange Bank (hereinafter referred to as the "Korea Exchange Bank") shall withdraw and pay the required funds on behalf of the truster (hereinafter referred to as "SPC") from the asset management account in the order of priority in the following subparagraphs at each payment date:

4. Expenses incidental to the following items:

6. Loans that SPC is to pay to a lender of collateral security and the principal of bills payable to a trustee company by SPC;

3) On the date of the issuance of the Promissory Notes and the conclusion of the acceptance contract, SPC entered into a monetary loan agreement with B and E as stipulated in Articles 5(5) and 11(7) of the issuance and underwriting contract of the Promissory Notes (hereinafter “instant monetary loan agreement”). Of the monetary loan agreement of this case, the contents relating to the instant case are as follows.

[This case's monetary loan agreement]

Article 2 Request for Loan and Limit on Borrowing

(1) The period during which the borrower (hereinafter referred to as the “SPC”) may borrow funds from the borrower (hereinafter referred to as “B and E”) in accordance with this Agreement (hereinafter referred to as the “loan Period”) shall be from the date of loan execution under the Asset-Backed Loan Agreement and from the date of the first bill issuance under the issuance and underwriting contract of this case to the date of full redemption of the principal and interest under the Asset-Backed Loan Agreement and the instant bill issuance and underwriting contract of this case.

(2) When any of the following causes (hereinafter referred to as “reasons for loans”) occurs during the period of financing, SPC shall request B and E to lend money necessary to pay the amount of money prescribed in Article 4(3)1 through 6 of the instant entrustment contract within the scope of the principal and interest pursuant to an asset-backed loan agreement and the issuance of the Promissory Notes and the instant underwriting contract (hereinafter referred to as “limit on borrowing”).

1. Where the sum of the balance of an asset management account as of a certain date of payment (where payment is to be made on a date other than the due date, referring to the date the relevant payment is to be made; hereinafter the same shall apply) and surplus funds in operation under Article 5 of the entrustment contract of this case is insufficient to pay money as provided for in Article 4 (3) 1 through 6 of the entrustment contract of this case at the time

4) Around that time, the Defendant issued to the Plaintiff all of the contracts related to the Fund, including the instant bill issuance and acceptance contract, an asset security loan agreement, a SPC equity investment agreement, etc., the monetary loan agreement of this case, a joint and several guarantee agreement, an aircraft rental agreement, an aircraft rental agreement, and an insurance trust agreement, etc. (hereinafter “the instant contract”).

5) The main contents of the terms and conditions of the trust agreement concluded between the Defendant, who is the asset management company of the instant fund, the Korea Exchange Bank, and the selling company (hereinafter “instant trust agreement”) are as follows (the date on which the trust agreement was concluded is not indicated in the instant trust agreement).

【Trust Trust Terms of this case】

Article 7 (Responsibilities of Asset Management Company, etc.)

If an asset management company, trustee company, or distributor commits an act in violation of Acts and subordinate statutes, trust terms and conditions, or investment prospectus, or causes loss to beneficiaries due to negligence in performing its business, it shall be liable to compensate for such loss

Article 11 (Term of Trust Contract)

(1) The term of this investment trust shall be two years and seven months from the date of initial creation of the investment trust: Provided, That when the trust contract is terminated, it shall be from the date of initial creation of the investment trust until the date of termination

(2) Notwithstanding the provisions of paragraph (1), the trust contract term shall be from the first creation date of an investment trust to the date on which the bill under Article 36 (1) 1 incorporated into the investment trust property is fully repaid.

Article 36 (Investment Objects, etc.)

(1) Every asset management company shall manage the investment trust property by the following investment objects and investment methods:

1. Bills provided for in subparagraph 4 of Article 3 of the Enforcement Decree of the Indirect Investment Act;

6) Meanwhile, on April 3, 2008, the Plaintiff acquired the beneficiary certificates of the Fund by transferring KRW 9 billion to the account opened in the Korea Exchange Bank in the name of SPC.

f. 'The 13th page of the 13th page of the Fund'. 'The progress, etc. of the management of the Fund' is 'the progress, etc. of the management of the Fund'.

○ The following shall be added between 13 pages 12 and 13:

“On the other hand, E paid KRW 2,460,00,510,000,000 paid by SPC on April 7, 2008, together with the balance of money transferred by SPC to E with existing loans, KRW 2,56,275,738 in total, from April 8, 2008 to November 11, 2008, as repair costs of the Aircraft, etc.

○ Number 17, 27, and 28 of the 17th page shall be deleted, and the following shall be written:

“9) GMECO sent e-mail to I on November 16, 201, 201, that the obligation of SPC related to the instant aircraft was USD 1,485,111.

10) While the progress of the project using the instant aircraft, etc. was prolonged;

On August 16, 2012, the GAO notified that the period of bringing the aircraft body in China under the Chinese customs laws and regulations has already expired, and that if not, the said aircraft body will be taken out from China until November 15, 2012, it would be seized and disposed of by the Chinese customs office. In consultation with the GAOO, the social and glass Asset Management decided to dismantle the aircraft body and sell it in the form of parts and scrap. Accordingly, SPC concluded a contract on September 3, 2012 to sell the aircraft body in USD 180,000 on the Corbbbbaoned, and SPC converted the above sales commission and handling commission from the above sales commission on September 25, 2012 to USD 179,986,807,807,805,7,800 won in Korean won.

After receiving USD 179,986.07 at X, the exchange rate of USD 1,16.08/$16.08/$39 at the time X was deposited into the account in the name of SPC, 186,473,463 won remaining after paying KRW 14,405,39 with legal expenses, SPC settlement expenses, SPC resident tax, etc. (=200,878,853 - 14,405,390 won) and remitting KRW 93,236,732 to the Korea Exchange Bank, a trustee of the Fund, and the remaining KRW 93,236,731 to the Korea Exchange Bank, a trustee of the Fund.

F. Receipt of money from the Plaintiff’s monetary recovery, provisional payment, or decision in lieu of conciliation

1) The Plaintiff was paid KRW 24,115,113 on July 3, 2008, and KRW 226,575,256 on October 6, 2008 by the Defendant for the repayment of investment funds.

2) On November 21, 2012, the Plaintiff received KRW 1,397,15,99 from the Defendant as provisional payment pursuant to the judgment of the first instance court, respectively, from the Defendant, and KRW 1,397,15,99 from glass Asset Management.

3) On October 18, 2013, the court of the trial prior to the remanding of the instant case rendered a decision as a substitute for the adjustment of the payment of KRW 100 million to the Plaintiff by November 20, 2013, in addition to the amount paid to the Plaintiff by the court of first instance with respect to glass Asset Management on October 18, 2013, and the said decision became final and conclusive on November 7, 2013. The Plaintiff received KRW 100,000,000 from the glass Asset Management on November 20, 2013.

4) After SPC paid the sales price of the Aircraft’s body to the Korea Exchange Bank, the Fund was liquidateded. Accordingly, on December 2, 2013, the Plaintiff was paid KRW 16,150,602 after deducting operating expenses from the liquidation money.

2. Judgment on the plaintiff's assertion

A. The plaintiff's assertion

1) The Defendant, as a selling company, has the duty to clearly explain the risk of the Fund to the Plaintiff, an investor, and protect the Plaintiff. Nevertheless, according to the instant investment proposal, etc., the Defendant merely explained that SPC acquired the ownership and right to dispose of the Aircraft, etc. in its own name, managed it separately from other aircraft, and managed it in accordance with the response methods against each investment risk, and that SPC will not acquire the right to dispose of the Aircraft, etc. of this case due to lien, the risk that SPC would be prevented from acquiring the right to dispose of the Aircraft, etc. of this case due to the risk that SPC would not obtain the right to dispose of the Aircraft, etc. of this case, and that the Fund failed to explain the risk that the Aircraft engine attached to another aircraft would not obtain the right to dispose of the Aircraft, etc. of this case. Accordingly, the Defendant violated its duty to explain

2) Therefore, the Defendant is liable to compensate the Plaintiff for damages arising from the Plaintiff’s breach of the above duty to explain, and the Plaintiff is obligated to first appropriate the amount that the Plaintiff received from the Defendant from the Plaintiff’s investment amount of KRW 9 billion to the interest or damages for delay from April 3, 2008, which was the date when the Plaintiff invested in the Fund, and to pay the remainder as stated in the claim and damages for delay, which is the remainder,

B. Determination

1) According to the structure, risk factors, and management plan of the fund of this case revealed in the facts acknowledged as above, the fund of this case could not exercise its right to dispose of the aircraft of this case until completion of the remodeling and repair of the aircraft of this case. In the event B and E fail to perform cash supplement arrangements, there is a risk that the fund of this case would not exercise its right to dispose of the aircraft of this case, etc., and there is a risk that the engine of this case would lose its effectiveness as a security for the collection of the instant letter funds.

2) When a dealer who sells beneficiary certificates of an investment trust under the Indirect Investment Act solicits a customer to purchase beneficiary certificates, it has a duty to protect the customer by clearly explaining the characteristics and major contents of the relevant beneficiary certificates, including the risks associated with the investment, so that the customer may make a reasonable investment decision based on the information. When a customer suffers loss as a result of a violation of such duty of care, tort liability liability is established. However, in cases where an investor of beneficiary certificates is sufficiently aware of the content thereof, or where an investment risk is not an investment risk that can reasonably be reasonably predicted at the time of the investment recommendation even as an investor specialized in the sales of beneficiary certificates, the dealer cannot be deemed to have the duty to explain such matters (see, e.g., Supreme Court Decision 2010Da55699, Nov. 11, 2010).

3) However, according to the above facts, the following circumstances are also acknowledged.

A) On October 2007, prior to the investment of the instant fund, the Plaintiff invested KRW 4.5 billion in the Fund No. 5 (hereinafter referred to as the “BPC”). The structure of the Fund was designed to purchase commercial papers issued by the Lone Star Limited Company, a relevant SPC, to lend and operate the aircraft to E, and to repay the commercial papers with its flight fee revenue. As the said commercial papers were refilled and repaid early, the Plaintiff was experienced in receiving the investment return from the Fund.

B) The fact that SPC purchased the instant aircraft, etc. and thereafter leased it to E through remodeling and repair by the repair company was scheduled from the stage of the Fund design of the instant case, and the Plaintiff had already known prior to the investment decision by the investment proposal and the Defendant’s explanation.

C) The reason why the repair company exercised the lien on the Aircraft’s premises and Spanish engines is because, due to the Berne Olympic Games, there was a problem in the procurement of parts, and serious defects in the engine during the repair process, the required period and cost were increased more than anticipated, and SPC failed to pay repair costs from the repair company on time due to financial reasons.

D) B and E entered into a monetary loan agreement with the purport of borrowing money from B and E in order to prepare for the risk of not being able to repay the funds of this case and any other costs. However, even if SPC was unable to pay the repair cost of the aircraft, etc. to the repair company, B and E could not lend the insufficient money to SPC due to the aggravation of management situation.

E) Meanwhile, due to E’s arbitrary installation and use of the Aircraft’s dynamic engine on another aircraft, the instant dynamic engine lost effectiveness as a collateral asset of the Fund by exercising the rights of other aircraft-related creditors.

4) We examine the above circumstances in light of the legal principles as seen earlier.

The risk that SPC could not exercise its right to dispose of the aircraft, etc. of this case by exercising the lien among the investment risks of this case, and the risk that the engine of this case would lose its effectiveness as a security for collecting fund funds of this case cannot be deemed to be a risk that the Defendant, the selling company, could reasonably have anticipated at the time of soliciting the Plaintiff to invest in the fund of this case. Rather, it is deemed that the act of breach of trust occurred in the course of managing the fund of this case, and rather, the Plaintiff, the investor, should not be deemed to have considered important investment risks in the investment decision of the fund of this case.

On the other hand, the agreement on lending funds to the EPC is a kind of personal security for the shortage of funds to the SPC. In the case of personal security, it is possible to repay the funds within the scope of the obligor’s own ability. Therefore, it is difficult to view that there is a risk of being unable to receive sufficient funds if the obligor’s own ability is insufficient as a matter of view of the nature of the security.

Furthermore, it is difficult to view that the Defendant could reasonably have anticipated that the situation may not occur where the Plaintiff could not lend short-term funds to the SPC due to the aggravation of management conditions of B or E, the person liable for security, at the time of soliciting the Plaintiff to invest in the Fund.

Therefore, the investment risk of the fund of this case cannot be deemed to be the risk that the defendant could have reasonably anticipated at the time of soliciting investment in the fund of this case, or the plaintiff, an investor, was fully aware of its contents. Thus, the defendant, the dealer of beneficiary certificates, cannot be deemed to bear the duty to explain to the plaintiff, who is the company selling beneficiary certificates, to be a professional investor.

3. Conclusion

Therefore, the Plaintiff’s claim against the Defendant seeking damages on the premise that the Defendant violated the duty to explain against the Plaintiff as the selling company of the Fund should be dismissed as it is without merit. However, the part against the Defendant, other than the part finalized by the judgment of remand among the judgment of the first instance, is unfair in conclusion, and thus, it is so revoked, and the Plaintiff’s claim against the Defendant corresponding to the revoked part is dismissed. It is so decided as per Disposition.