2012Da29939 Damage, Claim

1. A;

2. B

3. C.

1. Korea Exchange Securities Company;

2. Voluntary asset management companies:

Seoul High Court Decision 2010Na34939 Decided February 14, 2012

May 14, 2015

Of the lower judgment, the part of the lower judgment against the Plaintiffs regarding the claim against Defendant Jinjin Asset Management Co., Ltd. and the part against the Plaintiffs against Defendant Han Jin Asset Co., Ltd. is reversed, and that part of

The appeal by Defendant Han-Investment Securities Co., Ltd. is dismissed.

The grounds of appeal are examined.

1. As to the ground of appeal Nos. 1 and 2 by Defendant Jinjin Asset Management Co., Ltd. (hereinafter referred to as “Defendant Jinjin Asset Management”), and the ground of appeal No. 1 by Defendant Kin Korean Investment Securities Co., Ltd. (hereinafter referred to as “Defendant Kin Korean Investment Securities”)

An asset management company provided for in the former Indirect Investment Asset Management Business Act (amended by Act No. 8635, Aug. 3, 2007; Act No. 2 of the Addenda to the Financial Investment Services and Capital Markets Act, enacted as of February 4, 2009; hereinafter referred to as the “Act”) is obligated to protect investors by providing correct information on the profit structure and risk factors of investment trust to the selling company or investors so that investors can make reasonable investment decisions based on such information (see, e.g., Supreme Court Decision 2004Da53197, Sept. 6, 2007).

The court below acknowledged the facts as stated in its holding. ① Defendant Jinjin Asset Management was aware that the present value of the site for the creation of the instant collateral, calculated in accordance with the “domestic residential sales method” as stated in the instant appraisal report, was only calculated at the time of appraisal on the premise of the market price when developed differently from the Republic of Korea. The actual value of the site for the creation of the instant collateral was only NZ $620,000-850,000 as of February 2008, although it was known that the actual value of the site for the creation of the instant collateral was only NZ$15,250,000, and the value of the site for the creation of the instant collateral was stated in the instant appraisal report as NZ $39,060,000, which was ZZ$39,060,000, which was 200,0000, which was 200,0000,0000,000 won, which was 205,005,0,000.

In light of the above legal principles and records, the above fact-finding and determination by the court below are just, and contrary to the logical and empirical rules, there were no errors of law by exceeding the bounds of the principle of free evaluation of evidence against the law of logic and experience, or by misapprehending the legal principles as to the self-responsibility principle of indirect investment trust, the principle of land appraisal, the duty to protect investors, and the causation in damages.

2. As to the ground of appeal Nos. 2 and 3 of Defendant Han-han Investment Securities

The selling company prescribed by the Act, while soliciting investors to acquire beneficiary certificates for the sale of beneficiary certificates, shall provide investors with the investment prospectus provided to the asset management company and explain major contents to the investors. The company bears the duty to comply with the sales practice rules, including the characteristics of indirect investment, such as making indications that may mislead investors with regard to material facts, including performance dividends and possibility of loss of originals, and the duty to sufficiently and accurately notify and accurately the trust deed and investment risk, and the investment prospectus (see, e.g., Supreme Court Decision 2010Da76368, Jul. 28, 2011).

After finding the facts as stated in its reasoning, the court below acknowledged the following facts: (1) employee J of J in Jinjin Asset Management directly explained to the employees of Kinjin Investment Securities that the value at the time of appraisal under the premise of the market price when the NZ 15,250,000 was developed, using the NZ 15,250,000 as the current value of the site for the creation of the instant appraisal; and (2) sent e-mail to the employees of the above NZ 15,250,000 as well as the appraisal report of this case, which clearly stated that the above NZ 15,250,000 was able to refer to the appraisal report of this case as to the above NZ 15,250,000 as the employees of the NZ 2,500,0000, which is the employees of the NAN 250,000,0000, which is a joint and several surety 2,05,006,00,00.

In light of the above legal principles and records, the above fact-finding and judgment of the court below are just, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of the principle of free evaluation of evidence against logical and empirical rules, or there were no errors in the misapprehension of legal principles

3. As to the grounds of appeal on offsetting the plaintiffs' negligence and the ground of appeal on Defendant Jinjin Asset Management

Where a victim is negligent in causing or expanding damage in a tort compensation case, it must be taken into account as a matter of course in determining the scope of liability for damages. However, fact-finding or determining the ratio of comparative negligence is a matter of full power of the fact-finding court unless it is deemed that it is considerably unreasonable in light of the principle of equity (see, e.g., Supreme Court Decisions 2002Da43165, Nov. 26, 2002; 2010Da79947, Jan. 12, 2012).

However, the establishment of a joint tort does not need to be shared or shared between the joint tortfeasors, and there is sufficient common sense of existence of objective commonness with regard to each act. Therefore, liability for joint tort cannot be exempted if any damage was incurred by the relevant joint act. The joint tort liability is not individually seeking damages from each act of an individual of the perpetrator, but pursuing liability for a tort jointly committed by the perpetrator. Thus, in cases where the court offsets the amount of negligence on the basis of the victim's negligence, even if the ratio of negligence for each joint tortfeasor differs from each other, the fault of the victim shall not be individually assessed as the negligence of each joint tortfeasor, but shall be assessed as a whole by the negligence of all the joint tortfeasors (see, e.g., Supreme Court Decisions 2005Da32999, Jun. 14, 2007; 2010Da76368, Jul. 28, 2011).

The lower court recognized the Defendants’ joint tort liability against the Defendants, and limited the liability for Defendant Jinjin Asset Management against the Plaintiffs to 70%, and the liability for Defendant Jin Han Investment Securities to 40%, respectively, by taking account of various circumstances, such as the Plaintiffs’ negligence.

Examining the reasoning of the judgment below in light of the records, the measures taken by the court below to limit the defendants' liability are acceptable in light of the principle of equity (the plaintiffs' grounds of appeal disputing this cannot be accepted). Furthermore, the court below's evaluation of the plaintiff's fault ratio or the defendants' liability ratio differently by the defendant is contrary to the above legal principles, and there are special circumstances that should be different evaluation. Thus, the judgment of the court below is erroneous in the misunderstanding of legal principles as to comparative tort, which affected the conclusion of the judgment. The plaintiffs' grounds of appeal pointing this out are

As such, as long as the judgment of the court below on the comparative negligence ratio or the ratio of liability should be re-determined, it shall not be further determined on the grounds of appeal by Defendant Jinjin Asset Management to the purport that the comparative negligence ratio is significantly unreasonable.

4. As to the ground of appeal on the Plaintiffs’ occurrence of damages and satisfaction of claims

The plaintiffs' damages caused by the defendants' illegal acts occurred in real and conclusive around January 21, 2008, when the fund of this case is due, as alleged by the plaintiffs. However, in calculating the plaintiffs' damages at the maturity of the fund of this case, the remaining value of the beneficiary certificates held by the plaintiffs at that time should be deducted.

In calculating the amount of damages of this case, the lower court determined that the amount of redemption of the funds of this case received by the Plaintiffs around September 30, 201 is equivalent to the sale price from the exercise of the security right to the site of this case. Since the value of the site before the exercise of the security right was already indicated in the beneficiary certificates held by the Plaintiffs, it is reasonable to deduct the amount equivalent to the redemption amount received by the Plaintiffs from the original amount of damages of the Plaintiffs.

Examining the reasoning of the judgment below in light of the records, the court below is justified in calculating the remaining value of the beneficiary certificates held by the plaintiffs at the maturity of the fund of this case, as long as there is no adequate and reasonable method to assess the remaining value of the beneficiary certificates at the time of maturity of the fund of this case, and there is no error of law by misapprehending the legal principles as to the time of occurrence of damages or appropriation of performance, contrary to what is alleged in the grounds of appeal.

5. Conclusion

Of the judgment of the court below, the part against the plaintiffs regarding the claim against the defendant Yu Jin Asset Management and the part against the plaintiffs regarding the defendant Han Jin Asset Management is reversed, and that part of the case is remanded to the court below for a new trial and determination, and the appeal against the defendant Han Kan Investment Securities is dismissed. It is so decided as per Disposition by the assent of all

Justices Kim Yong-deok

Justices Lee In-bok

Justices Go Young-young

Justices Kim In-young