Plaintiff (Law Firm Dongin, Attorneys Park Jae-young et al., Counsel for the plaintiff-appellant)

Korea Cmat Bank (Law Firm Mapyeong, Attorneys Sung-soo et al., Counsel for defendant-appellant)

September 29, 2017

Seoul Central District Court Decision 2016Da545847 Decided May 11, 2017

1. The part of the judgment of the court of first instance against the plaintiff, which orders payment below, shall be revoked.

The defendant shall pay to the plaintiff 94,525,009 won with 5% interest per annum from December 10, 2016 to October 27, 2017, and 15% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining appeal is dismissed.

3. Of the total litigation costs, 40% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

4. The part concerning the payment of money under paragraph (1) may be provisionally executed.

1. Purport of claim

The defendant shall pay to the plaintiff 234,020,000 won with 5% interest per annum from April 29, 2015 to the service date of a copy of the complaint of this case, and 15% interest per annum from the next day to the day of complete payment.

2. Purport of appeal

Of the judgment of the court of first instance, the part against the plaintiff corresponding to the amount ordered to be paid below shall be revoked. The defendant shall pay to the plaintiff 191,325,00 won with 5% per annum from April 29, 2015 to the service date of a duplicate of the complaint of this case, and 15% per annum from the next day to the day of complete payment.

1. Basic facts

The reasoning for this part of this Court is as follows: (a) add “Article 24 (Partial Redemption of Beneficiary Certificates)” to “a beneficiary may claim a redemption of part of the share number of beneficial rights held by him/her” (Article 24 (Partial Redemption of Beneficiary Certificates) and, (b) add to “No. 4” to “No. 5”, and refer to the corresponding part of the reasoning of the first instance judgment, except where “No. 4 and No. 5” is used as “the same as the corresponding part of the judgment of the first instance.” Therefore, this is cited as it is in accordance

2. Summary of the plaintiff's assertion

The reasoning for this part of this Court is as follows, except for the dismissal of paragraphs 5-6-3 of the judgment of the court of first instance as follows, and therefore, it is identical to the reasoning for the judgment of the court of first instance. Therefore, it is acceptable to accept it as it is in accordance with the main sentence of Article 4

3) As to the second beneficiary certificates, the Defendant is obligated to pay to the Plaintiff KRW 189,103,583 as to the second beneficiary certificates (or KRW 565,508,793 as of April 20, 2015 - the amount assessed as of April 20, 2015 as of April 2, 2015, KRW 565,508,793 as the Plaintiff’s statutory share of 376,405,210), and delay damages therefrom. ② Preliminary (where the beneficial interest of the second investment trust is a divisible claim). The Plaintiff’s claim for redemption against the Defendant on November 30, 2016, the Defendant is obligated to pay the Plaintiff KRW 189,103,50 as well as delay damages (where the beneficial interest of the second investment trust is indivisible), and the Plaintiff’s claim for redemption against Nonparty 305,3709,479,405,705,79,79, and 2197,757,207, and205).

3. Judgment on the defendant's main defense of safety

The reasoning for this part is as stated in the reasoning of the judgment of the court of first instance, and thus, this part is cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

4. Judgment on the merits

A. Claim on the deposit claim of this case

The reasoning for this part is as stated in the reasoning of the judgment of the court of first instance, and thus, this part is cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

(b) Claim for 1 beneficiary certificates

The reasoning for this part is as stated in the reasoning of the judgment of the court of first instance, and thus, this part is cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

(c) Claim for 2 beneficiary certificates

1) As to the plaintiff's primary argument

In light of the following circumstances, it is reasonable to view that the beneficial interest of the investment trust 2 is a divisible claim and is naturally divided and reverted to the inheritor at the time of commencing inheritance. In light of the following circumstances, it is reasonable to view that the beneficial interest of the investment trust 2 is subject to division of inherited property and is in the relationship between the inheritor and the heir’s completion. Therefore, the Plaintiff cannot independently claim for the redemption of the number of old shares corresponding to his statutory share of the investment trust 2 before the completion of the relationship as to the beneficial interest of the investment trust 2 due to division of inherited property, etc.

(1) In addition to the right to claim distribution of profits and the right to claim redemption, an investor who purchased the beneficiary certificates of an investment trust has the right to request inspection, etc. of books and documents relating to collective investment property against the collective investment business entity pursuant to Articles 91 and 186(2) of the Capital Markets Act, and the right to exercise voting rights at the general meeting of beneficiaries pursuant to Article 190 of the same Act. Accordingly, the right to benefit of an investment trust is distinguishable from the right to claim a deposit, etc. as a right combining not only

② According to Article 189(1) and (2) of the Capital Markets Act, a collective investment business entity shall issue beneficiary certificates by equally dividing the beneficial rights of an investment trust and a beneficiary shall have equal rights according to the number of units of beneficiary certificates regarding the redemption of trust principal and the distribution of profit. In a case where the beneficial rights of an investment trust are deemed to belong to the heir, as a matter of course, upon the commencement of inheritance, to the heir by dividing the beneficial rights of an investment trust, which is impossible to be divided into less than one unit, into less than one unit.

③ Since shares representing the status as a shareholder of a stock company is not a divisible claim such as monetary claims, it is reasonable to view that, in the event several persons jointly own shares, the shares are not naturally divided according to their shares, but a legal relationship formed between several persons for completing the shares. This also applies to cases where several heirs inherit shares, which are jointly inherited property (see, e.g., Supreme Court Decision 2003Da7074, May 30, 2003). The right to benefit from an investment trust is reasonable to treat the shares similar to those of monetary claims, such as mere deposit claims, rather than those of monetary claims,

④ In cases where beneficiary certificates of an investment trust are redeemed, the collective investment business entity shall retire the relevant securities in accordance with Article 235(7) of the Capital Markets Act. After the redemption of the collective investment securities is completed upon a claim filed by some inheritors for redemption, the said securities are retired, and there is no way to reinstate those shares of the inheritors where the specific inheritance portion of the inheritors changes differently from the statutory inheritance portion due to the circumstances such as the existence of an excessive special beneficiary among the inheritors, or the recognition of the contributory portion of some inheritors, etc.

⑤ Articles 192(5)1 and 237(5)2 of the Financial Investment Services and Capital Markets Act, which the Plaintiff cited as the ground that the beneficial interest of investment trust is a divisible claim, are merely premised on the validity of a claim for redemption of the beneficial interest of investment trust. Article 24(1) of the terms and conditions of the second investment trust cannot be deemed as a provision that the Plaintiff is entitled to a claim for redemption by a part of the persons who completed the beneficial interest of investment trust.

2) As to the Plaintiff’s conjunctive assertion

The right to benefit of the investment trust 2 is completed by the heir, including the plaintiff, and thus the claim for redemption is valid only with the consent of all the inheritors.

As seen earlier, the Plaintiff filed a claim for redemption against the Defendant on April 16, 2015 with respect to the number of shares in the inheritance (2/9) of the beneficiary certificates of Type 2, which correspond to one’s statutory inheritance (2/9), and the duplicate of the complaint was served on the Defendant on April 16, 2015. Comprehensively taking account of the respective descriptions and the entire purport of the arguments in Evidence 15-9, 11, and 12, Nonparty 4, 1, and 2, who are the remaining inheritors, filed a claim for reimbursement against the Defendant on November 30, 2016 regarding the number of shares in the inheritance (7/9) remaining statutory inheritance (7/9) among the beneficiary certificates of Type 2, that the claim was filed against the Defendant on November 30, 2016, the redemption price was deposited into the account of Nonparty 1 on December 9, 2016, and the remainder of the shares in the account of Nonparty 1 and Nonparty 2’s statutory inheritance (3008/37 shares).

According to the above facts, it is reasonable to view that the claim for redemption in effect with the consent of all inheritors of the second beneficiary certificates was made on November 30, 2016, and the defendant is obligated to pay the price according to the amount appraised on the third business day from the plaintiff. The price of the redemption must be calculated by multiplying the amount of the price by the above appraised value among the beneficial rights of the second investment trust inherited by all inheritors. However, since the above amount of the redemption price against the plaintiff is the same as that of the non-party 1 and the non-party 2, the price of the redemption price that the defendant is liable to pay to the plaintiff is 470,930,219 (=1,648,255,767 x below KRW 1,67). Since the defendant's claim for redemption in effect with the consent of all inheritors of the second beneficiary certificates was made on August 28, 2015, or after the above judgment became final, the defendant's claim that the above amount of the redemption price should be more than the plaintiff's claim for redemption.

Therefore, the Defendant is obligated to pay the Plaintiff KRW 94,525,009 (= KRW 470,930,219 - KRW 376,405,210). Therefore, the Plaintiff’s conjunctive assertion can be acknowledged within the scope of the obligation to pay.

D. Sub-committee

The Defendant is obligated to pay the Plaintiff KRW 137,220,00 (=the instant deposit claim and KRW 42,695,000 + KRW 94,525,000 + KRW 2 beneficiary certificates) and damages for delay. Of them, the Defendant additionally assumes that 42,695,000 and damages for delay were cited in the first instance trial, and the Defendant is obligated to pay the Plaintiff damages for delay at a rate of 15% per annum as stipulated in the Civil Act from December 10, 2016, which is the date following deposit of KRW 94,648,25,767, which the Plaintiff seeks to pay to the Plaintiff KRW 94,525,00,00 and the damages for delay.

5. Conclusion

Thus, the plaintiff's claim shall be accepted within the scope of the above recognition, and the remaining claims shall not be accepted, and shall be dismissed. Since the part against the plaintiff corresponding to the above additional payment order among the judgment of the court of first instance is unfair with a different conclusion, the plaintiff's appeal is partially accepted, and the above amount shall be revoked, and the payment of the above amount shall be ordered to the defendant, and the remaining appeal of the plaintiff shall

Judges Egrh-man (Presiding Judge)

(5) A collective investment business entity that has created an investment trust may terminate part of the investment trust in cases prescribed by Presidential Decree, including accepting a claim for redemption from the beneficiaries.

2) Article 237 (Postponement of Redemption) (5) A collective investment business entity of an investment trust or an undisclosed investment association, or an investment company, etc. may, if part of the collective investment property falls under any cause for postponement of redemption under paragraph (1), postpone the redemption for any portion thereof, and accept the remainder in accordance with the equity in the collective investment securities owned by investors

Note 3) 1,648,256,33 won = Settlement interest of KRW 1,648,255,767 + Settlement interest of KRW 566 (interest of KRW 656 – Tax of KRW 90) until December 10, 2016) ¡¿ 2/7, and less than KRW 333