In a case where banks did not notify the risk of funds whose main target of investment in high-risk and high-risk OTC derivatives while soliciting to join the fund, the case holding that the bank is liable for damages as an employer since the above act constitutes a tort in violation of the investor protection duty.

In a case where banks did not notify the risk of funds mainly invested in high risk and high-risk OTC derivatives while soliciting fund accession, the case holding that the bank should compensate for damages suffered by customers as the employees in charge of the fund, on the ground that the act of actively soliciting fund accession against customers outside the door-to-the-counter derivatives without explaining the management method or the possibility of principal loss at maturity, etc. while emphasizing the fund's high profitability and safety, and without explaining the possibility of operating method or the possibility of principal loss at maturity, constitutes an act of hindering customers from forming a correct awareness of the risk inevitably accompanying the transactional act, or actively soliciting customers to trade with excessive risk in light of the customer's investment situation, and thus, the bank violated the investor protection duty.

Articles 750 and 756 of the Civil Act, Article 56 (2) of the former Indirect Investment Asset Management Business Act (repealed by Article 2 of the Addenda to the Financial Investment Services and Capital Markets Act, Act No. 8635, Aug. 3, 2007) (see Article 47 of the current Financial Investment Services and Capital Markets Act)

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

Plaintiff 1 and five others (Law Firm Han, Attorney Kang Han-soo, Counsel for the plaintiff-appellant)

Defendant 1 and one other (Law Firm Gyeongsung et al., Counsel for the defendant-appellee)

June 2, 2009

1. Defendant 1 Co., Ltd.: (a) from November 7, 2005, 35,806,725 won and its related amount; (b) from February 7, 2007, 207, 28,472 won and its related amount; (c) from November 7, 2005, from November 7, 2005, from 23,14,850 won and its related amount to Plaintiff 4; (d) from November 9, 2005, from 11,582,281 won and its related amount to Plaintiff 5; and (e) from November 9, 2005 to 11,582,932,929 won and its related amount to Plaintiff 6; and (e) from November 9, 2005 to 203% of the annual payment from the following day to November 25, 2005, respectively.

2. The plaintiffs' claims against defendant 2 corporation and the remaining claims against defendant 1 corporation are dismissed, respectively.

3. Of the costs of lawsuit, 7/10 of the portion arising between the plaintiffs and the defendant 1 corporation are borne by the plaintiffs, and the remainder is borne by the above defendant, and the part arising between the plaintiffs and the defendant 2 corporation is borne by the plaintiffs.

4. Paragraph 1 can be provisionally executed.

The Defendants shall jointly and severally pay the 134,845,50 won and the above amount to Plaintiff 1 from November 7, 2005; from February 7, 2007, with respect to the 31,829,676 won and the above amount to Plaintiff 2; from November 7, 2005, with respect to the 92,049,660 won and the above amount to Plaintiff 3; from November 7, 2005, with respect to the 88,283,000 won and the above amount to Plaintiff 4; from November 9, 2005 to the 36,793,404 won and the above amount to Plaintiff 5; from November 9, 2005 to the 36,793,404 won and the above amount to Plaintiff 6, the 4,9420 won and the above amount to the 15th of the annual complaint from the following day to the 205th of the 19th of each year.

1. Basic facts

The following facts are not disputed between the parties, or may be acknowledged by comprehensively taking into account the following facts: Gap evidence 1 through 5, 7 through 13, 15 through 31, 33 and 44 (including each number), Eul evidence 1 through 3, Eul evidence 5-1 through 8, Eul evidence 1-1, Eul evidence 2-1, Eul evidence 3-1, Eul evidence 4-1 through 11, Eul evidence 4-1, part of the witness's testimony, the fact inquiry results with respect to the head of Asset Management Association of Korea of this Court, and the whole purport of arguments.

A. Status of the parties

(1) Defendant 2 Co., Ltd. is a truster company under Article 2 of the Addenda to the Financial Investment Services and Capital Markets Act (amended by Act No. 8635 of Aug. 3, 2007 and enforced on Feb. 4, 2009; hereinafter “former Telecommunication Act”) established for the purpose of managing the assets of indirect investment fund, and issued beneficiary certificates by establishing ○○ Derivatives Investment Trust No. 1 (hereinafter “Fund No. 1”). Defendant 1 Co., Ltd. is a truster company under a consignment contract with Defendant 2 Co., Ltd.

(2) The Plaintiffs are investors who subscribed to the instant fund through Defendant 1 Co., Ltd., the selling company, and more than 2,000 customers, including the Plaintiffs, join the instant fund.

B. Details of the revenue structure and terms of the Fund, investment prospectus, advertisement paper, etc.

(1) The fund of this case is a CEDO (Cloter Equal Equi and Debl Organization) 2) OTC derivatives as its major subject to investment, and “1.2% per annum with a maturity of 5 years + 1.2% per annum,” and is a public-private derivatives investment trust with a maturity of 6 years and 2 weeks (1 November 22, 201) with a maturity of 6 years and 3) OTC derivatives with a principal subject to investment of the fund of this case. CEO (Cloter Equal Equi and Deblig Organization) OTC derivatives with a maturity of 5 years and 110 stocks traded in all world markets, including Europe, Japan, United States, Canada, Australia, etc. constitute an underlying asset of this case, and, if so, with a maturity of 5 years or more, profit-making structure and value of the fund of this case was established pursuant to the frequency set by the Cloter’s Cloteral structure and profit-making loss of this case.

The transaction of derivatives financial products originally started with the aim of avoiding the risk of value fluctuation, but has developed into high-risk and high-profit investment products that can gain profits rather by actively receiving the risk of value fluctuation based on high-tech financial techniques, along with the development of financial engineering.

(2) Around November 2005, Defendant 2 established a trust agreement under Article 27(2) of the former Transboundary Investment Act and Article 36 of the Enforcement Decree of the same Act (repealed by Article 2 of the Addenda to the Enforcement Decree of the Financial Investment Services and Capital Markets Act, No. 20947 of Feb. 4, 2009), stating all the essential descriptions, and reported them to the Financial Services Commission pursuant to Article 29 of the same Act, and provided them to Defendant 1. The above terms and conditions contain the following “the principle of risk burden of beneficiaries”.

-mortem-

Article 1 (Purpose, etc.)

(2) An investment trust in this case is an investment trust of derivatives investing in exchange-traded derivatives or over-the-counter derivatives for the purpose of avoiding risk exceeding 10/100 of the trust property from one month after the date of initial creation of the investment trust, which is similar to the risk of direct investment in exchange-traded derivatives

Article 5 (Reversion, etc. of Profit and Loss)

In connection with the management of investment trust property, profits and losses arising from the instructions of Defendant 2 Stock Company shall be included in the investment trust and reverted to the beneficiary.

(3) In addition, Defendant 2 Co., Ltd. prepared an investment prospectus in accordance with the provisions of Article 56 of the former Telecommunication Act and Article 54 of the Enforcement Decree of the same Act and provided it to Defendant 1 Co., Ltd., and the main contents of the investment prospectus are as follows.

-investment prospectus-

1. Matters concerning the investment trust concerned;

Ⅰ. Summary, purpose and strategy of investment trust;

2. Purpose of investment;

This investment trust shall pursue profits by investing most of the trust property in over-the-counter derivatives linked to the price of multiple foreign specific stocks (limited to stocks issued by the European Economic Area (EA), Japan, the United States, Canada, and Australia). However, there is no guarantee that the investment purpose of this investment trust is to be attained, and no party involved in this investment trust, including Defendant 2, Company, Trustee, and Company, shall guarantee that the investment principal of the investment is guaranteed or that the investment objective is to be achieved.

Matters concerning purchase and redemption of beneficiary certificates of Part II and distribution of investment returns;

(Ⅰ) Main investment recommendation and investment risk;

1. Objects of primary investment recommendations;

(1) OTC derivatives, the underlying asset of which is scheduled to be invested, shall be paid at a level of profit during each quarter (one-year maturity of the first investment trust creation date + one point two percent per annum) from the date of issuance of OTC derivatives, regardless of the market price level of stock certificates issued in the European Economic Area (EA), Japan, United States, Canada, and Australia, and shall be paid principal when the number of events of the fund at maturity is below the number of events for preserving principal determined on the first date of creation of the investment trust; while at maturity, if the number of events of the fund exceeds the number of events for preserving principal, the fund will incur loss of principal. In particular, it shall be invested at a level of six years and two weeks including the contract period of OTC derivatives, and thus, it is suitable for the management of the funds possible for investors for a maximum of six years and two weeks.

② Also, over-the-counter derivatives that are scheduled to be invested can expect high profits if they meet certain conditions as structural designed. However, if they meet certain conditions, they are suitable for investors who pursue high profits more than general bond-type products while bearing structural risks, such as the risk of principal losses, as determined in advance.

2. Investment risks;

(1) Derivatives investment risks: Derivatives may be exposed to a much higher risk than directly investing in underlying assets due to the let effect which can be settled in small deposits. Generally, over-the-counter derivatives are directly traded with a company issuing over-the-counter derivatives, and thus, the payment of principal and interest of over-the-counter derivatives may be delayed or the principal and interest may not be recovered due to the deterioration of business environment, financial status and credit standing of the company.

3. Loss risk for the original investment: This investment trust does not guarantee or protect the total amount of the principal and interest of the investment as a performance-based dividend product, and is not protected by the Korea Deposit Insurance Corporation, etc. unlike bank deposits. Therefore, there is a risk of loss for all or part of the original investment, the risk of loss or decrease of the amount of investment will entirely be borne by the investor, and any party, such as Defendant 2 Co., Ltd. or selling company, shall not be liable for the investment loss. In addition, when the redemption is made during the period on which the repurchase fee is imposed, the imposition of the repurchase fee may cause an investment loss or increase the

④ Market risk and individual risk: Investment trust property is exposed to the risk of changes in the macroeconomic index such as the price fluctuation of securities, interest rate, etc. by investing the investment trust property in bonds, derivatives, etc. In addition, the value of investment trust property may be sharply changed due to the issue of subject-matter of investment, the business environment of the issuing company, financial situation, and aggravation of the credit standing.

⑤ liquidity risk: In the event that an investment trust is made in any item with a bad volume of trading from the investment trust property, there may be restrictions on redemption due to the liquidity shortage of the item subject to investment, which may result in the decline in the value of the investment trust property. Generally, over-the-counter derivatives have to make direct transactions with the issuing company, unlike other securities or exchange-traded derivatives, so liquidity is low. Therefore, when it is intended to sell over-the-counter derivatives prior to maturity due to the preparation of redemption amount in response to the beneficiary's redemption, etc., the intermediate sale may not be smooth, and there is a possibility of a price loss due to the sale.

(4) 피고 2 주식회사는 이 사건 펀드에 관하여 “Most Innovative Product!! ○○ 파생상품 투자신탁 제1호”라는 제목의 광고지(을나 제3호증의 1, 이하 ‘광고지 원안’이라고 한다)를 만들어 2005. 10. 26.경 자산운용등록협회의 사전심의를 마쳤는데, 위 광고지 원안의 앞면 하단에는 “신용평가기관인 무디스(Moody's)(주 5)로부터 ‘A3’등급(대한민국 국가 신용등급)을 부여받은 장외파생상품에 투자하여 주6) 국채 수준의 안정성으로 6년 동안 매 분기 고정금리 [5년 만기 국고채 금리 + 1.2%(예상)]으로 수익을 추구하고 만기에 사전에 결정된 방식으로 손익을 확정하는 파생상품 간접투자신탁입니다”라는 문구가 기재되어 있고, 위 광고지 원안의 뒷면 중간 부분에는 ‘펀드의 수익구조’라는 제목 아래 “원금은 펀드에 투자된 장외파생상품의 수익구조에 따라 손실가능성이 있으나, 세계적인 신용평가기관인 무디스(Moody's)가 대한민국 국가 신용등급과 같은 ‘A3’등급을 부여해 원금손실 가능성은 대한민국 국채의 부도확률과 유사한 수준의 안정성을 갖고 있는 것으로 평가함”이라는 문구가 기재되어 있으며, ‘동일만기의 시중고금리 상품과의 비교’라는 제목 아래 이 사건 펀드의 연수익률(6.20%)을 시중은행 후순위채(5.43%) 및 국민주택채권(5.10%)의 각 수익률과 비교하는 내용의 표가 그려져 있고, 광고지 원안의 뒷면 하단에는 구 간투법 제59조 에 따라 “간접투자상품은 운용결과에 따라 이익 또는 손실이 발생될 수 있으며, 그 결과는 투자자에게 귀속됩니다. 가입하시기 전에 투자대상, 환매방법, 보수 등에 관하여 투자설명서를 반드시 읽어보시기 바랍니다. 펀드 수익은 상황에 따라(주가지수연계증권, 장외파생상품 발행사의 파산 등) 원금손실이 발생할 수도 있습니다. 본 상품은 운용실적과 환율변동에 따라 이익 또는 손실이 발생할 수 있으며 그 결과는 투자자에게 귀속됩니다”라는 내용의 경고문언이 기재되어 있다.

(5) At the same time, S&P (Mody's Mody's Mody's Mody's Mody's Mody's Mody's Mody's Mody's Mody's Mody's Mody's Pody's Pody's Pody's Pody's Pody's Pody's Pody's Mody's Mody's 3rd credit assessment agencies around the world, along with Fitch's Mody's Mody's Mody's Mody's Mody's Mody's Mody's Mody's Mody's

The credit rating of credit rating Aa 0.03% higher than A1 0.05% higher than A2.07% higher than A10.15% higher than A10.15% higher investment risk A20.28% A30.28% A30.28% higher than Ba20.28% higher than A30.35% higher (at present, there is no problem of interest payment and principal repayment), but in the future, there is risk existence) Ba20.43 Ba 30.56% higher than D10.73% higher than Ba20.95% B1.39% B1.39% B1.204% higher than B05.37% higher than B0.29.37% higher than B05.29.37% higher than C05.29.37% higher than C05.29.37% higher than B0.29.37.

Defendant 2: (a) reduced the size of the text of the warning words at the lower end of the original advertising paper from 7 points to 6 points; (b) added, under the front title, the phrase “the national credit rating (A3)” emphasizing the words “the national credit rating of the Republic of Korea +1.2%,” and “A3” as “the quarterly fixed rate for every six years,” and the design emphasizing the credit rating “A3”. Other contents were re-established as to the advertisement words identical to the original advertising paper (BB No. 2-1, hereinafter referred to as “instant advertising paper”); and (c) through Defendant 1, etc., distributed the instant advertising paper to investors.

On the other hand, the credit rating determined by Edice may be modified, temporarily suspended, or revoked at any time, and the grade is only the expression of opinion, and it does not recommend the purchase, sale, or possession of securities.

(5) In addition, Defendant 2 Co., Ltd. provided Defendant 1 Co., Ltd. with the documents in the title “○○ Fund An” (hereinafter referred to as “CapA documents”) as reference materials for the invitation of investors, and the main contents are as follows.

- ○○ Fund Incorporateds -

Q1. The characteristic of the instant fund?

(1) The national credit rating of the Republic of Korea (U.S. A3) is as follows: (2) is as follows: (3) is a new derivatives fund of a new concept which is definitely paid every quarter for five years (based on the rate of interest on five-year government bonds) +1.2%).

Q3. A principal shall be preserved, but need to be preserved?

채권의 경우 발행회사가 부도나는 경우 원금손실이 발생하는 것과 마찬가지로 이 사건 펀드도 펀드에 투자된 장외파생상품의 수익구조에 따라 극단적인 경우 손실이 발생할 수도 있습니다. 그러나 세계적인 신용평가기관인 무디스(Moody's)가 본 펀드에 대한민국 국가신용등급과 같은 ‘A3’등급을 부여했다는 것은 펀드의 원금손실 가능성이 대한민국 국채의 부도확률과 유사한 수준으로 본 펀드는 매우 높은 안정성을 가지고 있다고 할 수 있습니다. 일반적으로 시중의 원금보존형 펀드들이 대부분 은행채 정도의 채권을 편입해 원금 보존을 추구하는 구조로 되어 있는데 이 사건 펀드는 시중은행채(대부분 무디스 신용등급 Baa1∽ Baa2)보다 높은 신용등급(무디스 신용등급 A3)으로 안정성이 훨씬 높습니다.

Q6. Pketing Poke of funds briefly wumpha wumpha

The point of points of this Fund is that the interest rate higher than that of the State bonds is fixed and paid for six years or more due to stability at the level of the State bonds.

Q9. Whether the goods are most suitable for customers?

(1) Customers who intend to operate retirement allowances or other surplus funds in a stable manner.

(2) A customer who wishes to invest in subordinated bonds but fails to make an investment due to a restriction on the scale of issuance, finds other investment alternatives, and provides guidance for such alternatives.

(3) A customer who wishes to use a “ quarterly-unit living fund” in the form of pension.

(4) The amount of large assets in order to prepare for the comprehensive taxation of financial income through the distributed payment of interest have the potential to be sold to each other.

In conclusion, I would like to operate the surplus in a stable way after six years, and it is appropriate for the branch to receive stable interest each quarter.

(6) Defendant 1 Co., Ltd.: (a) posted the following information on the instant fund and registered it on its website.

- Registered posts on Defendant 1 Company’s website

This product is invested in over-the-counter derivatives which Defendant 2 acquired the rating A3 (Mody's international credit rating), which is a new concept of goods first sold to the domestic market through alliance with the “Ccredit Swiks Group,” a global financial group.

This over-the-counter derivatives is structural and issued as security a class A3 bond and is granted the credit rating at the level of national bonds of the Republic of Korea from the Mody, a global credit rating agency for the possibility of paying principal and interest, and is stable.

The Fund shall be entitled to subscribe more than five million won, and the rate of interest shall be determined by adding 1.2% additional interest to the rate of return on national treasury bonds with five-year maturity on the date of the creation of the Fund ( November 11, 2005), and the principal shall be paid on the due date ( November 22, 201).

C. The plaintiffs' fund subscription circumstances

(1) From November 1, 2005 to October 10, 2005, Defendant 1 Co., Ltd sold the instant fund, and the Plaintiffs subscribed to the instant fund under the instruction of the staff in charge of fund sales of each of Defendant 1 Co., Ltd. (in the case of Plaintiff 2, upon the recommendation of Nonparty 2, who is an employee of Defendant 1 Co., Ltd., the acquisition of existing subscriber’s beneficiary certificates), and the details of each of the Plaintiff’s subscription to the fund are as listed below.

-the details of each plaintiff's subscription to the Fund -

Plaintiff 30,00,000 won (Plaintiff 30,000,000 won) at the time of the agreement with the head of the Dong-dong branch on November 7, 2005, which was included in the main sentence, and Nonparty 259,332,200 won (Plaintiff 3 on February 7, 2007, Nonparty 4150,00,000,000 won at the Incheon Branch on November 7, 2005, and Nonparty 520,00,000,000 won (Plaintiff 520,000,000,000 won (Plaintiff 5,60,60,0000,000 won) at the Dong-dong branch on November 9, 2005, Nonparty 60,00,000,000 won (Plaintiff 60,000,000 won) at the Dong-dong branch on November 10, 2005

(2) In joining the Fund, the Plaintiffs prepared each transaction application at the request of the staff in charge of Defendant 1 Co., Ltd., and signed or sealed each of the customer certificates of subscription to each investment trust product, the issuance of investment prospectus, and the major explanation note, and delivered them to Defendant 1 Co., Ltd.. The said transaction application is accompanied by the letter “matters of customer confirmation of indirect investment product subscription” as set out below, and the said written confirmation of customer subscription to the investment trust product, the issuance of investment prospectus, and the major explanation note, are printed with the same text, and simultaneously at the same time, read “I confirm that I have subscribed to the Investment Trust product after sufficiently explaining the matters of confirmation,” and “I have confirmed that I have been given an explanation of the major contents of the investment prospectus,” and signed and sealed by the Plaintiffs.

-Matters to identify customers of indirect investment goods -

1. The product is safely stored and managed in the trustee company under the Indirect Investment Asset Management Act, and the profits or losses resulting from the operation will accrue to the investor.

2. Indirect investment products to be admitted are not subject to the protection of depositors and may cause loss to the principal of the investment as a performance dividend product.

3. With respect to the subject of investment, methods of redemption, remuneration, etc. before the time of accession, the terms and conditions and the investment prospectus shall be read without fail;

7. The past yield does not guarantee the future yield.

(3) However, the employees in charge of Defendant 1 corporation did not actually present or deliver to the Plaintiffs the investment prospectus or terms and conditions of the instant fund, and did not obtain a signature or seal on the explanation confirmation, etc. without explaining the main contents, and did not specifically explain the risk associated with the burden of profit and loss. Rather, at the time of selling the fund, the employees in charge of Defendant 1 corporation stated that “the principal shall be guaranteed unless the Republic of Korea is lost.”

D. The progress of the management of the instant fund and the Plaintiffs’ claim for redemption

(1) In 2007, the financial crisis that occurred due to the insolvency of the Western mortgage loan in the U.S., led to the global share price decline. As a result, a significant loss occurred in over-the-counter derivatives invested by the instant fund, and the rate of return on the instant fund has decreased rapidly from January 2008, and around August 25, 2008, the rate of return on the principal loss (including 8% of the intermediate redemption fee) of the instant fund exceeded 41.51%.

(2) Under Articles 100(1) and 100(1) of the former Enforcement Decree of the Investment Act, Defendant 2 Co., Ltd. provided the asset management report of the Fund once every three months to Defendant 1 Co., Ltd., the selling company. Meanwhile, Defendant 1 Co., Ltd. did not send and deliver the asset management report to the Fund subscribers, including the Plaintiffs. From January 2008, the rate of profit of the Fund of this case fell rapidly, around March 2008, Defendant 1 sent the asset management report to some subscribers, including Plaintiff 1, etc. on or around August 25, 2008, and only on August 25, 2008, it was anticipated that the appraised value of the Fund of this case falls, and it is anticipated that there is a high possibility of loss of principal at maturity of 2011, and if early termination, it would incur considerable loss to the Fund during the period of maturity of 40% or more.

(3) Accordingly, the plaintiffs filed a claim for redemption and received each redemption money among the funds of this case. The date of the claim for redemption and the refund for early termination are as listed below.

-Ar -

Plaintiff 165,154,500 on September 16, 2008, September 23, 2008, Plaintiff 27,502,524 on September 23, 2008, Plaintiff 3, 411,717,000 on September 11, 2008, Plaintiff 57,380 on September 11, 2008, 200 on September 23, 2008, Plaintiff 5,206,596 on October 23, 2008, Plaintiff 55,057,380 on September 12, 2008.

(4) Meanwhile, Plaintiff 1,275,00 won (per 5,025,00 won x 11), Plaintiff 2, 11,05,000 won (per 1,005,000 won x 11), Plaintiff 3, 27,637,500 won (per 2,512,500 won x 11), Plaintiff 4, 36,850,000 won (per 3,350,000 x 11), Plaintiff 5, 11,05,00 won (per 1,05,000 x 111), Plaintiff 2,425,000 won (per 18,405,000), and Plaintiff 16,405,000 won (per 10,000 won) x 105,106 won) x 105 won, respectively.

2. Occurrence of liability for damages;

A. Determination as to the assertion that a person violates his/her duty to clarify and explain under the Regulation of Standardized Contracts Act (hereinafter “Standard Standardized Contracts Regulation Act”).

(1) Notes

The Plaintiffs did not perform their duty to specify and explain terms and conditions that the loss would accrue when the principal would not be returned at maturity pursuant to Article 3 of the Act on the Regulation of Terms and Conditions when selling the Fund to the Plaintiffs. Therefore, the Plaintiffs asserted that the said principal was lost as the content of the contract. Accordingly, the Defendants asserted that they have the duty to pay the amount stated in the purport of the claim to the Plaintiffs as compensation for loss caused by principal loss.

(2) Determination:

According to Gap evidence Nos. 1, 6, 8, and 11 (including various numbers), each of the following facts can be acknowledged: "The new investment trust product under the contract (investment) is not a bank deposit, and it may incur losses to the investment principal with the performance-based dividend product that can be distributed with profits according to its management performance," and even according to the former Simple Investment Act, if the beneficiary risk principle with regard to indirect investment is directly or indirectly prescribed, the risk could be sufficiently predicted if the provisions on the risk of principal loss of the fund under the terms and conditions and the investment prospectus were read. Further, the management company, the management company, did not take charge of selling the beneficiary certificates of this case, and the contact with investors, including the plaintiffs, were indirectly made through the distribution company, and in such a case, it is difficult to find that the terms and conditions of the contract of this case were not included in the terms and conditions of the contract of this case.

B. Determination on the assertion on invalidation or revocation

(1) Notes

The plaintiffs, although the funds of this case are products with high risk of loss of principal, they make false or exaggerated advertisements so that they can be mistaken as if they were time deposits whose principal is guaranteed with respect to the funds of this case or products corresponding thereto. Thus, the plaintiffs, who did not have invested high risk assets, trusted the above contents of the advertisement and subscribed to the funds of this case. Thus, each fund subscription contract concluded by the plaintiffs, shall be null and void as unfair legal acts pursuant to Article 104 of the Civil Act, or shall be revoked on the ground of deception by false or exaggerated advertisements by the defendants. Accordingly, the defendants shall be obliged to pay to the plaintiffs the amount stated in the claims as restitution.

(2) Determination:

(A) Determination as to whether it is invalid as an unfair legal act under Article 104 of the Civil Act

The unfair legal act stipulated in Article 104 of the Civil Act is established when there exists an objective imbalance between payment and consideration, and subjectively, a transaction that lost balance is conducted using gambling, rashness, or inexperience of the affected party. Defendant 2 Co., Ltd. prepared an advertisement site that emphasizes the stability of the Fund by comparing the risk of principal loss of the Fund with the default rate of national bonds of the Republic of Korea, and provided it to Defendant 1 Co., Ltd., the selling company. Defendant 1 also prepared a notice that it is a product with a high level of national bonds of the Republic of Korea with a global credit rating agency for the possibility of guaranteeing principal payment of the Fund, and registered it on its own homepage. However, as seen earlier, whether to join the Fund should be determined under the investor’s own responsibility. Thus, it is difficult to find that the Plaintiffs’ assertion alone has considerable imbalance between the payment and consideration at the time of joining the Fund, or there is no evidence to acknowledge that the Defendants made the purchase agreement using the Plaintiffs’ experience or experience.

(B) Determination as to whether the Defendants’ deception by false or exaggerated advertising should be revoked on the grounds of deception

In light of the general commercial practices and the good faith principle, it is difficult to say that the act of deception constitutes deception if the Defendants falsely notified the material facts of the transaction to the extent of criticism in light of the good faith duty. However, there is lack of deception as long as it might be acceptable in light of the general commercial transaction practices and the good faith principle (see Supreme Court Decision 9Da55601, 5618, May 29, 2001, etc.). As to the instant case, Defendant 2 Co., Ltd. stated the following facts: (a) as “IEO OTC derivatives subject to investment in the Fund,” and (b) there is no possibility that the Defendant Co., Ltd.’s credit rating was identical to the Defendant Co., Ltd.’s principal and/or government bonds of the Republic of Korea as “A3”; (c) there is no possibility that the funds were distributed to the Defendant Co. 1, Ltd. based on the fact that there is no possibility that the funds will have been distributed to the Defendant Co. 2, Ltd.’s original financial statements, as it included the risk of the Defendant 1’s new financial statements.

C. Determination as to the assertion that there was a principal payment agreement

(1) Notes

The Plaintiffs asserted that the Defendants are obligated to pay the Plaintiff the amount stated in their claims in accordance with the above agreement, since they agreed to guarantee the Plaintiff’s principal of investment with respect to the instant fund.

(2) Determination:

Defendant 2: (a) prepared an advertisement paper stating that the Fund has stability similar to the Korean government bond ratio; and (b) delivered it to Defendant 1 Co., Ltd.; (c) distributed it to Defendant 1 Co., Ltd; or (d) posted a notice similar to the above advertising paper and registered it on its own website; (b) however, such circumstance alone is difficult to deem that the Defendants agreed to guarantee the investment principal to the Plaintiffs; and (c) there is no other evidence to acknowledge it.

D. Determination on the assertion that the investor protection obligation was violated

(1) Notes

The plaintiffs are obligated to protect investors as companies that entrusted or sold the fund sale (the investor protection duty). Accordingly, they are obligated to explain the risks of transaction (the duty to explain the risks of transaction), and to recommend the plaintiffs to meet the customer's intent and circumstances. Defendant 1 corporation interferes with the formation of correct awareness about the risks inevitably accompanying transactions with ordinary investors who lack experience in violation of such investor protection duty, and actively solicits transactions involving excessive risks in light of the customer's investment situation, as if there is no risk, in a false or exaggerated manner, and Defendant 2 corporation also entrusted sale and entrusted sale, and provided accurate information to fulfill the above customer protection duty. However, Defendant 2 corporation also did not provide accurate information to the plaintiffs who are investors through Defendant 1 corporation, a distributor preparing advertising paper that there was no principal loss risk similar to the Korean government bond with respect to the fund of this case, and Defendant 1 corporation did not provide the defendants with false information that the plaintiffs did not provide the asset management report of this case to the investors, and thus, did not provide the defendants with the asset management report of this case.

(2) Determination:

(A) Determination as to Defendant 1 Company

In order to establish tort liability against investors in cases where an employee of a securities company actively solicits a customer to make an investment, even if it does not require an active deception as to whether to guarantee a profit, such factors as transaction circumstances, transaction methods, customer’s investment situation (property status, age, social experience, etc.), transaction risk, and the degree of explanation on the transaction risk, etc., are considered as follows: (a) it constitutes a case where an employee with experience in the solicitation interferes with the formation of correct awareness about risks inevitably accompanying the solicitation, or actively recommends a transaction involving excessive risk in light of customer’s investment situation; and (b) ultimately, it should be deemed as an act having illegality by disregarding customer’s duty to protect the customer (see Supreme Court Decision 200Da50312, Jan. 10, 203, etc.). Meanwhile, Article 56(2) of the former Investment Prospectus Act provides that the employee shall not provide an investment trading company with the following explanation to the investor, such as “an employee who is in charge of indirect investment trust product sales”, and shall not provide an investment trading company with the main content.

Therefore, comprehensively taking account of the overall purport of oral arguments as to this case’s health account, Gap evidence Nos. 16 and 17, and Eul evidence No. 4 (including various numbers), the Fund’s investment in OTC derivatives linked to price fluctuation in specific foreign stock certificates and paid quarterly profits to beneficiaries up to maturity. It is an investment trust with a revenue structure that is fully or partially paid at maturity according to the number of event events generated during the investment period. The OTC derivatives subject to investment by the Fund always did not have high risk of principal loss due to changes in the securities market, and there is no possibility that it would be principal loss due to this act. ② The employees of Defendant 1 Company did not receive education on the structure of the Fund’s products even if there is a very complicated risk of this case’s investment risk and thus, it did not know that there was a relatively high risk that the Fund’s investment risk was traded at a fixed rate of 15 years under the former Securities Depository Act.

Therefore, Defendant 1 Co., Ltd, as the employer of the employees in charge, is liable for the damages suffered by the plaintiffs due to the above illegal acts of the employees in charge.

(B) Determination as to Defendant 2 Company

1) As an indirect securities investment scheme for the general public, a securities investment trust is a securities investment scheme that has a risk at all times due to changes in the rate of return on the securities, and its risk is bound to be borne by investors in principle. However, this premise is premised on the fact that accurate information about the composition, object of investment, importance of investment, etc. of an investment trust, which is an important matter of risk burden, is provided and that investors’ decision on investment should be made appropriate. In a case where a trust company does not directly take charge of the sales of beneficiary certificates by entering into a sales consignment agreement with a seller, a trust company, who is the founder and operator of an investment trust, is a party directly interested in the sale of beneficiary certificates, and has established a trust jointly with a trustee company by preparing a trust agreement with the trustee company after obtaining prior approval from the Financial Supervisory Commission, preparing an investment prospectus and providing it to the selling company, and after soliciting investors to acquire indirect investment securities (see Article 56(1) and (2) of the former Investment Trust Act). Since the trust company is subject to protection and management by providing reasonable information among investors pursuant to Article 90(16(2).

2) In accordance with the above legal principles, Defendant 2: (a) provided false information to investors through Defendant 1, Inc., the selling company of which was 00,000, using more than 10,000, which is similar to that of the Republic of Korea’s government bonds; (b) provided that it violated the duty to protect investors; (c) provided 12, 13, 16, and 17, and 10,000, respectively; (d) provided that the advertising site of this case or OTC derivatives were emphasizing the stability of the Fund; (e) “The principal value of the OTC derivatives was likely to incur losses depending on the profit structure of the Fund; (e) provided that it was 1,00,000,000,000 more than 7,000,000,0000,000,0000,000,000,000,000,00,000,00.

Recognizing the fact that the probability of principal loss of the above over-the-counter derivatives is low through B, and in light of the above facts, even if Defendant 2, citing the credit rating of SDR, prepared the instant advertising site and the NA data containing the content that it has a stability similar to the national bonds of the Republic of Korea with respect to the instant fund and offered them to investors, it is difficult to deem that Defendant 2 provided investors with wrong information to the extent that it may hinder the formation of accurate awareness of the risks associated with the pertinent transaction or investment contents, and otherwise, there is no evidence to prove that Defendant 2 violated the duty to protect investors.

Next, as seen earlier, Defendant 2 Company prepared an investment prospectus at the time of issuance of indirect investment securities and provided it to the selling company with the explanation that it did not provide the asset management report that it did not deliver an investment prospectus to the Plaintiffs, and it did not provide the asset management report one time every three months, and as seen earlier, Defendant 2 Company provided that the investment prospectus at the time of issuance of indirect investment securities should be provided to the selling company, and the selling company should provide the investment prospectus and explain the major contents of the investment prospectus. According to Article 121(1) of the former Telecommunication Act, Article 100(1) of the Enforcement Decree of the same Act, and Article 81(1) of the former Telecommunication Regulation enacted by the Financial Supervisory Commission, Defendant 2 Company prepared the asset management report at least once every three months and provided the asset management report to indirect investors. Defendant 2 provided the asset management report to the selling company and provided the asset management report to each investor only after evidence No. 1, No. 4, or No. 111 of the investment prospectus to Defendant 210.

3. Scope of damages.

(1) Damages

With respect to the scope of damages for which Defendant 1 corporation is liable for damages to the Plaintiffs, the damages incurred by the Plaintiffs due to the above tort are 70 won investment losses, i.e., the amount calculated by deducting the Plaintiffs’ early termination refund and the fund income from the principal of each of the Plaintiffs’ fund subscription. The amount is 79,570,500 won ( principal subscribed 300,000,000 - KRW 165,154,500 - KRW 55,74,676 ( principal subscribed 59,332,200 - 200,500, KRW 2050, KRW 2050, KRW 2050, KRW 750, KRW 2050, KRW 2050, KRW 305, KRW 6050, KRW 705, KRW 605, KRW 705, KRW 705, KRW 700, KRW 505, KRW 705, KRW

(2) Limitation of liability

On the other hand, as seen above, the plaintiffs should make an investment after carefully ascertaining the concept of investment trust or the content of trust goods, structure of profit and loss, investment risk, etc. under the principle of self-responsibility, and make an investment. However, the plaintiffs neglected to do so, which states that the transaction application at the time of joining the fund may cause loss to the invested principal, and did not take measures to confirm the contents of the terms and conditions and the investment prospectus. After the investment, they have been received the terms and conditions and the investment prospectus, they have to endeavor to reduce damages appropriately in response to the changes in the market conditions. Even if they have neglected to do so, they have acquired considerable fund proceeds before the early termination of the investment fund, and the fundamental reasons for the plaintiffs' loss occurred are the global financial crisis that occurred from the failure of the U.S. staff, other than the defective description of the defendant 1 corporation. However, the plaintiffs' negligence should be considered in calculating the above damages, and it is reasonable to view the ratio of the plaintiffs' fault to 55%, thereby limiting the liability of defendant 1 corporation to 45%.

(3) Sub-decisions

If Defendant 1 Co., Ltd. calculates the amount of damages to be compensated for the Plaintiffs by taking account of the ratio of liability of Defendant 1 Co., Ltd. (45%) as seen earlier, the amount of damages to be compensated for the Plaintiffs would be 35,806,725 won (79,570,500 won x 45%) against Plaintiff 1; 9,348,604 won (20,74,676 won x 45%) against Plaintiff 2; 28,985,472 won (64,412,60 won x 45%) against Plaintiff 3; 23,14,850 won (51,43,000 x 45%) against Plaintiff 4; and 5 is 11,582,281 won (25,404 won x 405%) against Plaintiff 2; 16,293,2965 won x 197).

Therefore, Defendant 1 Co., Ltd. has an obligation to pay to Plaintiff 1 for KRW 35,806,725, KRW 9,348,604, KRW 28,472, KRW 23,144,850, KRW 11,582, KRW 281, KRW 11,932,929, and KRW 11,929, and KRW 11,929, each of which is the date of joining the fund as an illegal act (Plaintiff 1,3: November 7, 2005; KRW 2: Plaintiff 7: February 7, 2007; KRW 4,5, and KRW 6: November 9, 2005) to Plaintiff 3, KRW 23,144,850, KRW 450, KRW 50, KRW 500, KRW 11,209, KRW 25,000, annually, from the day following the imposition of damages for delay.

4. Conclusion

Therefore, the plaintiffs' claims against the defendant 1 corporation are accepted within the scope of the above recognition with merit. The claims against the defendant 2 corporation and the remaining claims against the defendant 1 corporation are dismissed as they are without merit. It is so decided as per Disposition.

Judges Lee Jin-ro (Presiding Judge)

1) The term “investment trust” under the former Telecommunication Act refers to ordinary fund. The term “investment trust” means the indirect investment fund that is made by a truster of funds from investors in order to make the trustee invest and manage the property (property of investment trust) in accordance with the truster’s instructions and to divide beneficial rights therefrom to acquire the relevant investor (Article 2 Subparag. 3 of the former Telecommunication Act). The indirect investment fund is divided into securities indirect investment fund, derivatives indirect investment fund, real estate indirect investment fund, real estate indirect investment fund, short-term financial investment fund, and re-collective investment fund, etc. according to the subject of the management of the indirect investment property. Among them, the indirect investment fund means the indirect investment fund that invests in exchange-traded derivatives or over-the-counter derivatives for the purpose of avoiding risk as prescribed by the Presidential Decree exceeding 10/100 of the indirect investment property (Article 27 of the former T

2) Article 2 subparag. 9 of the former Telecommunication Act provides that "over-the-counter derivatives" means transactions prescribed by Presidential Decree, in which the prices of currencies, investment securities, interest rates, indirect investment securities, real assets, real assets, or currencies, investment securities, interest rates, indirect investment securities, real estate, and real assets outside the securities market, etc. or an index based thereon are traded, and "transaction prescribed by Presidential Decree" under Article 10 of the former Enforcement Decree of the former Telecommunication Act means transactions in which the results of the transactions are related to the credit risk of underlying assets (referring to transactions in which the rights or obligations of the parties to the transactions occur when the credit transaction occurs due to the reasons agreed upon between the parties to the transaction, such as default on basic assets and decline in credit rating (hereafter in this Article referred to as "credit transaction"), among transactions falling under any subparagraph of Article 9.

Note 3) Unit-type investment trust: Investment trust whose trust term(s) is predetermined in advance. The time of purchase shall be limited to solicitation (or sale period specifically fixed) and shall not add funds during operation.

Note 4) Poolio means a group of securities consisting of at least two securities units, namely, a group of securities consisting of a group of securities, that is, a group of securities, and may reduce risks through distributed investments. Therefore, such scenarios constitute a group of securities.

State bonds shall be issued as part of the financial policy issued by the Government after the resolution of the National Assembly. State bonds shall be classified into representative non-risk assets with the highest designated level and credit rating because the Government guarantees the payment of principal and interest. At present, state bonds issued by the Government include treasury bonds, treasury bills, foreign exchange equalization fund bonds, one-year-year-year-year-year-year-year-year-year-year-year-year-year-year-year-year-year-year-year-year-year-year

Note 7) The sub-pr-backed mortgage loan is a U.S. loan program that applies the highest interest rate, instead of lending a loan to the lowest person on credit terms at a level of 100% of the house price, and due to a high yield of profit, the hedge fund or many financial institutions around the world invested a huge amount of funds.

8) An analysis of the results of investments made at the time of using past data. Defendant 2 Co., Ltd., at the time of this case’s OTC derivatives trading trading partner of the instant OTC derivatives, steting of the possibility of principal loss on the basis of stock price data, etc. for more than the past 10 years. As a result of observing the frequency of event occurrence over a total of 770 times during the analysis period from January 4, 1986 to September 30, 2005, it was confirmed that the number of funds Este is less than that of the principal preservation event (58) during the previous analysis period, and thus, the principal loss of the fund was not incurred.