[1] In a case where a bank source did not properly notify the risk of funds whose main investment is high risk and high profit over-the-counter 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 violating the duty to protect investors

[2] The case holding that since an asset management company violated the suitability principle and the duty to explain and caused a sales bank to provide investors with wrong information to the extent that it may hinder the investor from forming an accurate awareness of the risk or the content of investment caused by the transaction of fund products, it is held that it is jointly liable with the sales bank

[1] The case holding that in a case where the Bank did not properly notify the risk of fund, which mainly invests in the over-the-counter derivatives of high risk and high profit, while soliciting the joining of the fund, the act of actively soliciting the fund against customers other than the door-to-counter derivatives without explaining the management method or the possibility of principal loss at maturity without explaining the possibility of operating method or the possibility of principal loss at maturity, etc. while emphasizing the fund's high profitability and safety, the act of actively soliciting the fund's joining of the investment product related to the over-the-counter derivatives constitutes an act that interferes with the customer's right formation of awareness about the risk inevitably accompanying the transaction and actively solicits the transaction that is in violation of the investor protection duty in light of the customer's investment situation, and thus the bank must compensate for

[2] The case holding that in light of the fact that an asset management company entrusts a bank with the sale of fund products suitable for investors with knowledge and experience in finance, etc. necessary to assess the risks and advantages of investment, and allows investors to engage in sales activities mainly for the stable operation of surplus funds for a long time through the KUA data distributed to the bank, and the above fund products are used in advertisements or KUA data, etc. which can be mistaken for as safe as national bonds even if there is a high profit rate compared to the national bonds in Korea, the asset management company in violation of the suitability principle, the duty of explanation, and the above asset management company is recognized to provide a sales bank with false information to investors to the extent that it causes interference with the formation of accurate awareness about the risks or investment risks associated with the transaction of fund products, and thus, it is recognized that the company is liable for damages arising from a joint tort with the sales bank.

[1] Articles 750 and 756 of the Civil Act, Article 56 (2) (see current Article 47 of the Financial Investment Services and Capital Markets Act) 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) / [2] Articles 750 and 760 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 current Article 47 of the Financial Investment Services and Capital Markets Act)

[1] Supreme Court Decision 200Da50312 decided Jan. 10, 2003 (Gong2003Sang, 576) / [2] Supreme Court Decision 2004Da53197 decided Sept. 6, 2007 (Gong2007Ha, 1521)

Plaintiff (Law Firm Hannuri, Attorneys Kim Young-young et al., Counsel for the plaintiff-appellant)

Defendant 1, et al. (Law Firm Sejong, et al., Counsel for the defendant-appellant)

June 26, 2009

1. The Defendants shall pay to each Plaintiff 7,470,104 won with 5% interest per annum from November 11, 2005 to August 14, 2009, and 20% interest per annum from the next day to the day of full payment.

2. The plaintiff's primary claim and the remaining conjunctive claim are all dismissed.

3. Of the costs of lawsuit, 2/3 is assessed against the Plaintiff, and the remainder is assessed against the Defendants.

4. Paragraph 1 can be provisionally executed.

Main: Defendant 2 Co., Ltd. shall pay to the Plaintiff 240,437,910 won with 20% interest per annum from October 28, 2008 to the date of full payment.

Preliminary: The Defendants jointly and severally pay to the Plaintiff the amount of KRW 242,137,671 as well as 5% per annum from November 11, 2005 to October 27, 2008, and 20% per annum from the next day to the day of full payment.

1. Basic facts

A. Status of the parties

(1) Defendant 1 Company (hereinafter “Defendant 1 Company”) is a truster company under the former Indirect Investment Asset Management Business Act (amended by Act No. 8635 of Aug. 3, 2007 and repealed by Article 2 of the Addenda to the Financial Investment Services and Capital Markets Act (amended by Act No. 8635 of Feb. 4, 2009; hereinafter “former Telecommunication Act”), which is established for the purpose of managing the assets of the indirect investment fund, and is a company that issues beneficiary certificates by setting up subparagraph 1 of ○○ Derivatives Investment Trust (hereinafter “instant fund”), and Defendant 2 Company (hereinafter “Defendant bank”) is a bank in which Nonparty 1 owned the shares of 9.9%, and is in charge of selling the fund of this case.

(2) The Plaintiff is an investor who has joined the instant fund through the Defendant Bank, the selling company, through the Defendant Bank.

B. Profit structure of the Fund

(1) Of the over-the-counter derivatives with CEDO II, linked to the price of multiple foreign sovereign rights, the Fund is primarily invested in the “Non-Prced assets fixed rate 201 fixed assets security interest rate (N-Prcked Fixed Fixed R Rate 201, hereinafter “the OTC derivatives of this case”) with an expected return rate of 1.2% per annum with an expected return rate of 6 years and 2 weeks (1.2% per annum) with a maturity of 2 years (1 November 22, 2011) (in the case of an OTC derivatives with a revenue structure of the OTC derivatives of this case, the Fund was established in full in proportion to the frequency during which principal amount should be paid for less than 5 days (58 days in the event that principal amount should be paid for less than 5 years) in connection with the profit structure of the instant OTC derivatives of this case x the frequency during which principal amount should be paid).

(2) The instant over-the-counter derivatives subject to the principal investment of the instant fund is a special purpose company called CEDO Plc, and an administrator is a 110 shares traded in all world major markets, including Europe, Japan, the United States, Canada, and Australia (hereinafter “CSFBi”), divided into 56 shares in risk scenario 56 shares and insurance scenario 56 shares, and shall be guaranteed for shares in risk scenario items (i.e., losses will be incurred if the share price of risk scenario items falls below 35% of the base price), and for insurance scenario shares, the purchaser will be guaranteed for the shares (i.e.,, a decline of less than 35% of the total share price of insurance scenario items).

In other words, (1) CESO PPc pays the cash received from the Fund to CSSBi, and receives the secured bonds from CESBi. (2) CESO PPPc pays interest accrued from the secured bonds to the due date, and receives the fixed interest from CSSBi. A fixed interest is paid for the amount of interest accrued from the risk scenarios and the secured bonds at the time of the establishment of the OTC derivatives, the fixed interest is the source of the quarterly fixed interest for the Fund. (3) On the expiration of the due date, CESO PPPPc pays to CFi the cash flow, such as principal and principal accrued from the secured bonds, and if the redemption is due from the due date to the expiration of 36% of the total amount of the principal and interest accrued from the date of the instant redemption to the due date of 35% of the total amount of the instant redemption (from the due date of 36% of the instant OTC derivatives) - the total amount of the principal and interest accrued from the date of the instant redemption to the due date of 365% (5%).

(3) Therefore, the instant fund is also linked to the revenue structure of the instant over-the-counter derivatives and received fixed interest interest from CESBi to maturity, and pays it as quarterly final profit to the fund investors, and the terms and conditions of the repayment of the instant over-the-counter derivatives are deemed as the terms and conditions of the repayment of the instant OTC derivatives, as they are, the repayment terms of the instant fund’s maturity.

(4) On the other hand, the OTC derivatives of this case obtained A3 credit rating from Mody's Mody, and the long-term credit rating system of Mody related to this case is as listed below.

본문내 포함된 표 구분 장기신용 등급 부도확률 신용등급내용 무디스 등급 현황 예시 (2005. 10. 25. 현재) 투자적격등급 Aaa 0.03% 최상의 신용상태 미국 국채 Aa1 0.05% 전반적으로 신용상태 우수하나 Aaa에 비하여 약간의 투자위험 존재 UBS, Citi Bank, HSBC Aa2 0.07% Aa3 0.10% A1 0.15% 신용상태 양호 삼성전자 A2 0.22% POSCO, SK 텔레콤, 한국전력 A3 0.28% 대한민국 국채, 산업은행, 기업은행, 한국가스공사, 한국씨티은행, KT, 수협, SC제일은행, 국민은행 Baa1 0.35% 신용상태 적절 (현재 이자지급 및 원금상환 문제없으나, 미래에는 위험존재) 우리은행, 신한은행, 하나은행, 조흥은행, 산업은행(후) 주2), 기업은행(후), GS칼텍스 Baa2 0.43% 신한은행(후), 하나은행(후), 우리은행(후), 조흥은행(후), 외환은행 Baa3 0.56% 외환은행(후), 현대캐피탈, 대구은행, 부산은행, 전북은행, 현대차, LG전자, 기아차, KCC 투자 요주의 및 부적격 등급 Ba1 0.73% 투자시 요주의 대상 SK Ba2 0.95% 데이콤, 하나로텔레콤, LG텔레콤 Ba3 1.39% ？ B1 2.04% 바람직한 투자대상이 아님 하이닉스 B2 2.99% ？ B3 5.63% ？ Caa 17.00% 신용상태 나쁨 ？ Ca 20.00% ？ C 20.00% 최악의 신용상태 ？

Note 2) Industrial Bank (B)

However, unlike general bonds, the assessment of structural bonds such as the fund of this case is not an assessment of the issuer’s ability to pay principal and interest, but an assessment of the possibility of paying principal and interest by using statistical techniques by taking account of the profit structure of the bonds, the credit rating of the issuing participating agency, and cash flow according to scenarios. It is merely an assessment of the credit risk, namely, the payment stability, regardless of the amount of principal and interest, and it is not an assessment of the risk of market price fluctuations. Such credit rating can be changed, withdrawn, and postponed at any time. In fact, the credit rating of ETC derivatives of this case was adjusted to C through C to Ca3 on December 24, 2007 and Ca3 on January 21, 2009.

(5) Among the various Tanaches of the instant CETO, the term “N-Ppincation” is written only on the Bank K, which is the instant over-the-counter derivatives, and Paragraph 5 of the Additional Information Schedule of Derivatives on Derivatives Transaction Certificates sent by CSSBi, the operator of the instant over-the-counter derivatives, to Defendant Asset Management Company, is appropriate only for investors with knowledge and experience in financial and management issues necessary to assess the risks and advantages of investment in over-the-counter derivatives, and the investment decision shall be carefully examined in terms of the financial situation and investment purpose of the purchaser before making the investment decision, and shall ultimately be determined to be appropriate for the other party to the instant OTC derivatives, issuer, risk scenarios and insurance portfolios composition, collateral securities, and transaction, and shall ultimately be reasonable for those who are able to incur losses in full amount of investment.”

C. Details of the terms, investment prospectus, product description, advertisement paper, etc. of the Fund

(1) On November 2005, the Defendant Asset Management Company: (a) enacted a trust agreement stating all the essential descriptions under Article 27(2) and Article 36 of the Enforcement Decree of the former Telecommunication Act (repealed by Article 2 of the Addenda to the Enforcement Decree of the Financial Investment Services and Capital Markets Act (Presidential Decree No. 20947 of Feb. 4, 2009); (b) reported them to the Financial Services Commission in accordance with Article 29 of the said Act; and (c) provided them to the Defendant Bank; and (d) the said terms and conditions state the “principle of beneficiary risk burden” as follows.

- - Pharmacopoeia -

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)

Profits and losses incurred by the instructions of an asset management company in connection with the operation of investment trust property shall be counted in the investment trust and reverted to beneficiaries.

(2) The Defendant Asset Management Company prepared an investment prospectus in accordance with the provisions of Article 56 and Article 54 of the Enforcement Decree of the former Investment Act, and provided it to Defendant Bank. The main contents are as follows.

- 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 its trust property in over-the-counter derivatives linked to the price of multiple foreign specific stocks (limited to stocks issued in the European Economic Area (EA), Japan, 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, such as an asset management company, trustee company, distributor, etc., shall guarantee the investment principal or the achievement of the investment purpose.

4. Major investment objects and investment plans; and

(ii)investment strategies;

(1) OTC derivatives, the investment of which is scheduled, shall be paid at a level of profit during each quarter (5-year government bonds interest rate + 1.2% per annum on the date of initial investment trust) from the date of issuance of OTC derivatives, irrespective of the stock certificates issued in the European Economic Area (EA), Japan, United States, Canada, and Australia as underlying assets, where the number of events of the fund at maturity is less than the number of events for preserving principal determined on the date of initial establishment of the investment trust, principal shall be paid, while when the number of events of the fund at maturity exceeds the number of events for preserving principal and interest, products which incur loss of principal. In particular, investment at a level of 6 years and 2 weeks including the term of the OTC derivatives contract, and thus, are suitable for the management of investors’ funds available for two weeks every six years and 2 weeks.

(2) Major contents of over-the-counter derivatives

(a) underlying assets;

(b) Maturity: Six years; and

(c) the initial base price;

(d) Payment of oophones: Payment of profits at a level every quarter from the date of issuance of over-the-counter derivatives (five-year interest rate on government bonds with the maturity of five years on the date of creation of an investment trust + 1.2% per annum

(e) requirements for the determination of events;

- When the initial base price falls below 35 per cent (income rate base -65 per cent).

- Observation on every Saturday after three years from the date of issuance of over-the-counter derivatives;

- The maximum number of events per item shall be 10 times limit;

(f) the pursuit of preserving principal and the terms and conditions of loss of principal;

A. Definitions

B. Conditions for pursuing the preservation of principal;

: 만기까지 ‘펀드 이벤트 수’ ≤ ‘원금보존 추구 이벤트 수’

C. Conditions for occurrence of principal loss;

: Not later than maturity, “the number of events seeking to preserve the principal”

* The amount recovered upon occurrence of loss due;

= Principal ¡¿ [1 -]

Matters to be identified;

The rate of return on each quarter after the date of issuance of over-the-counter derivatives (the rate of national treasury bonds with the maturity of five years on the date of establishment of the first investment trust + 1.2% per annum) shall be paid to all investors on the date designated in advance in each quarter from the date of issuance of over-the-counter derivatives. However, the amount distributed to beneficiaries in this investment trust shall not necessarily mean the fixed

Redemption is not desirable even in the middle of the year.

OTC derivatives is structuralized goods of which profit structure is determined in advance by contract with the issuer, and if an investor makes a redemption even before maturity, there may be a difference between the appraisal price of OTC derivatives and the actual sale price due to redemption. In this case, if the appraisal price is greater than the sale price, there may be a possibility of infringing the interests of the remaining beneficiary. There is a high redemption fee different from the general investment trust in order to minimize the possibility of infringing the interests of the remaining beneficiary.

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 (5-year government bonds interest rate + 1.2% per annum on the date of initial investment trust creation + 1.2% per annum) from the date of issuance of OTC derivatives regardless of the stock certificates issued in the European Economic Area (EA), Japan, United States, Canada, and Australia, which are underlying assets. When the number of events of the fund at maturity is below the number of events pursuing to preserve principal determined on the date of initial establishment of the investment trust, principal shall be paid, while when the number of events of the fund at maturity exceeds the number of events pursuing to preserve principal, products which may incur loss of principal. In particular, investment at a level of 6 years and 2 weeks including the term of contract of OTC derivatives, and thus, are suitable for the management of funds available for investors

② Also, over-the-counter derivatives 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 seeking 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 shall not guarantee or protect the total amount of the principal and interest of the investment as a performance-based dividend product, and shall not be protected by the Korea Deposit Insurance Corporation, unlike bank deposits. Accordingly, there is a risk of loss for all or part of the original investment, the risk of loss or decrease of the investment amount shall be borne exclusively by the investor, and any party, such as an asset management company or a distributor, shall not be liable for the investment loss. In addition, if the redemption is made during the period on which the redemption fee is imposed, the imposition of the redemption fee may cause or increase the scope of the loss.

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 in 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 investment subject, the business environment of the issuing company, financial situation, and aggravation of the credit standing.

⑤ liquidity risk: In the event of investing in any item whose trading volume is not abundant from the investment trust property in consideration of the scale of the securities market, etc., there may be restrictions on redemption due to the liquidity shortage of the item subject to investment, which may cause decline in the value of the investment trust property. Generally, over-the-counter derivatives have to engage in direct transactions with the issuing company, unlike other securities or exchange-traded derivatives, so liquidity is low. Therefore, if it is intended to sell over-the-counter derivatives prior to maturity due to the occurrence of redemption amount corresponding to the beneficiary's redemption, etc., it may not be smooth to sell over-the-counter derivatives prior to maturity, and there may be a possibility of a price loss due to the middle sale.

Ⅲ. Distribution of profits from purchase and redemption of beneficiary certificates;

2. Redemption of beneficiary certificates:

(ii)the redemption fee;

(2) The redemption fees shall be charged on the basis of the amount of redemption as follows:

1. Redemption before the end of the trust contract period: 8% of the amount of redemption;

(3) As to the instant OTC derivatives, the Defendant Asset Management Company has prepared a summary statement of the product amounting to Section A4 Section A, which emphasizes that “The fixed interest rate shall be paid every six years every quarter,” and the phrase “A3, a global credit rating company, shall be deemed to have the possibility of redemption of principal at the level of national bonds by granting credit rating (the same grade as the national credit rating of the Republic of Korea),” and that “the possibility of redemption of principal shall be deemed to have the safety of national bonds at the level of national bonds.” The main contents of the instant OTC derivatives include “the maturity rate of national treasury bonds with the maturity of five years every quarter of the date of creation of an investment trust + the annual interest rate of 1.2% per annum,” the requirements for event determination, and the conditions for principal loss occurrence, and at the bottom, read the investment prospectus regarding the subject, redemption method, and remuneration before determining the subscription of the fund.” The product is safely stored, managed, and may incur profits or losses according to the performance of operation, and shall belong to the investor.”

In addition, the Defendant Asset Management Company prepared a product proposal of more than 20 pages A4, and at the first bottom of the first chapter, stated the warning that “this product shall not guarantee principal with performance-based dividends, and the profit and loss shall belong to investors.” The Fund introduction emphasizes the phrase “investment in over-the-counter derivatives acquired at A3’s credit rating, which is the national credit rating of the Republic of Korea,” and “payment of quarterly final profits during 6 years [for 5 years maturity + 1.2% per annum (e.g., annual interest rate)],” and written a comparison table with the product of high interest rates at the same maturity, emphasizing the phrase “high interest rate proposal higher than the credit rating higher than the bank subordinated bonds sold at the same maturity,” and written the revenue structure of over-the-counter derivatives and the credit rating of zero.”

그리고 피고 자산운용회사는 무디스로부터 “Most Innovative Product!! ○○파생상품 투자신탁 제1호”라는 제목의 광고지(이하 ‘광고지 원안’이라고 한다)를 만들어 2005. 10. 26.경 자산운용등록협회의 사전심의를 마쳤는데, 광고지 원안의 앞면 하단에는 “신용평가기관인 무디스(Moody's)로부터 ‘A3’등급(대한민국 국가 신용등급)을 부여받은 장외파생상품에 투자하여 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, 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 후순위채권(5.43%) 및 국민주택채권(5.10%)의 각 수익률과 비교하는 내용의 표가 그려져 있고, 뒷면 하단에는 구 간투법 제59조 에 따라 “간접투자상품은 운용 결과에 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.

Defendant Asset Management Company reduced the size of the text of the warning words at the lower end of the original advertising site from 7 points to 6 points. Under the front title, Defendant Asset Management Company added the phrase “(A3) of the Republic of Korea’s national credit rating” to the word “1.2% + interest rate of national treasury bonds + payment at a quarterly fixed rate every six years,” and the design that emphasizes “A3” as the credit rating of the Republic of Korea’s country”. Other contents were re-established as to the advertisement words identical to the original advertising site (hereinafter “instant advertising site”), and distributed the instant advertising site via Defendant Bank, etc. to investors.

(4) On the other hand, the Defendant Asset Management Company provided Defendant Bank with the documents in the title “○○ Fund An” (hereinafter referred to as “CapA documents”) as reference materials to attract 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?

In the case of bonds issued by the issuing company, as in the event of default, principal loss would occur, as in the case of bonds, and as in the case of bonds invested in the fund, the fund of this case may incur losses. However, as in the case of bonds issued by the global credit rating agency, it may be deemed that the fund of this case has a very high safety of this fund at a level similar to the probability of the principal loss of the funds of the Republic of Korea, at a level similar to the probability of default on the national bonds of the Republic of Korea. Generally, the fund of this case is the structure that pursues to preserve the principal by incorporating most of the funds preserved in the city into the bonds of bank bonds, and the fund of this case is more safe than the credit rating of the commercial bank bonds of this case with a higher credit rating than that of the bank bonds of this case (no partial credit rating Ba1 to Ba2).

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.

C. The Plaintiff’s ground for joining the fund

(1) The Plaintiff had no experience in investing in the stocks or funds before joining the instant fund. Around October 2005, the Plaintiff’s house and the Plaintiff’s home, which the Plaintiff resided, were accepted as a Samsung Home Stacker site, received compensation of KRW 1.5 billion. Around November 4, 2005, upon being aware of the fact, Nonparty 2, the vice-head in charge of PB in the dispatching branch of the Defendant Bank, who was found at the Plaintiff’s home, was requested to enter the instant fund by visiting the said branch along with Nonparty 2, a vice-director in charge of the PB in the dispatching branch of the Defendant Bank, who was found at the Plaintiff’s home.

(2) In joining the instant fund, the Plaintiff prepared an application for new subscription and subscription of investment trust products, signed or sealed the investment prospectus issuance and main explanation statement, customer counseling document, and delivered it to the Defendant bank. The customer counseling document contains the contents such as “to explain that this product is a performance-based product,” “to explain that it is a performance-based dividend type product,” and “ to sufficiently explain the profit structure of this product,” and the Plaintiff indicated “0” in each confirmation column, and Nonparty 2 made a product summary and a product proposal, and the Plaintiff issued the product summary and a product proposal to the Plaintiff every six years. Nonparty 2 provided the product summary and the product proposal to the Plaintiff that “The Fund will pay fixed profits every six years from the derivatives invested in the OTC derivatives. A3 grade is assessed to the level of State bond.” The Plaintiff issued the product summary and the product proposal to the Plaintiff.

(3) However, Nonparty 2 did not actually present or deliver to the Plaintiff the investment prospectus or terms of the instant fund.

D. Management progress of the Fund and Plaintiff’s intermediate redemption

(1) Following the creation of the Fund, the rate of return on November 11, 2005 from February 10, 2006 to February 10, 2006 was 1.15%. However, the rate of return on February 11, 2006 to May 10, 2006 continued to have -1.5% since the date of creation, and the rate of return on marinas has decreased rapidly from January 2008, and thus, the rate of return on the Fund exceeded -75% around June 4, 2009.

(2) On August 25, 2008, the Defendant Asset Management Company sent to all the subscribers, including the Plaintiff, a notice stating that “The assessed amount of the instant fund would fall rapidly and the possibility of loss of principal at the maturity of 2011 is expected to be high, and if early termination is made at the present time, the Defendant Asset Management Company will incur losses to the principal at a level of -40%. The Defendant Asset Management Company, while maintaining its subscription until the maturity of the Fund, shall take careful account of whether it would keep the results of its subscription, or whether it would have been able to redeem the fund even after the maturity of the Fund.”

(3) On October 20, 2008, the Plaintiff filed a claim for redemption of the fund of this case, and received KRW 59,562,090 as the redemption price.

(4) On the other hand, the Plaintiff received total of KRW 46,762,650,00 as the Fund’s revenue before he subsequently redeems the Fund.

[Ground of recognition] A without dispute, Gap evidence 1 through 6, 8, 11 through 23, Eul evidence 1 through 5, Eul evidence 1 through 6, 11, 13, and 14 (including each number), non-party 2's testimony, the result of the plaintiff's questioning, the purport of whole pleadings

2. Judgment on the main claim

A. The assertion

The Plaintiff asserts that, although the Fund is a product with high risk of principal loss, the Defendant bank is obligated to pay to the Plaintiff the amount calculated by deducting the amount of redemption from the amount of redemption as its restitution, by explaining that it is a time deposit guaranteed by the principal with respect to the Fund or a product equivalent thereto, and thus, the Plaintiff, who did not have invested high risk assets, was aware of the above explanation and became affiliated with the Fund. As such, the Fund purchase agreement between the Plaintiff and the Defendant Bank should be cancelled by mistake.

In regard to this, the Defendant bank asserts that: (a) the Plaintiff did not have any explanation that the principal of the Fund is guaranteed as a term deposit or a product corresponding thereto; (b) the Plaintiff was grossly negligent in making such mistake if the Plaintiff made a mistake; and (c) even if the Defendant bank provided an explanation that could be mistaken, the Defendant bank merely provided an intermediary service for the Defendant Asset Management Company, the truster, and the Plaintiff, the beneficiary in the investment trust, and that the expression of intent of revocation of mistake should be made against the Defendant Asset Management Company.

B. Determination

First, in light of the above facts, we examine whether the Plaintiff could cancel the Fund purchase agreement of this case on the ground of mistake, and based on the facts acknowledged earlier, we can find the fact that any material submitted by the Defendants to the Plaintiff was not explained to the Plaintiff that the Fund principal is guaranteed, and that Non-Party 2 in charge of the Defendant Bank did not explain to the Plaintiff that the principal may be lost in certain cases, but that such risk may be very low, and there is no evidence to support the fact that the Plaintiff made mistake of the Fund as a product whose principal is guaranteed similar to a fixed deposit or a fixed deposit.

Even if the Plaintiff was found to fall into mistake, according to the facts acknowledged earlier, the Plaintiff visited the Defendant Bank with two sons to explain about the Fund, and the name of the Fund also includes not only the name of the Fund, but also the name of the passbook, product summary statement, and product proposal issued by the Plaintiff, and the warning statement that each principal loss could have been incurred. As such, the Plaintiff was gross negligence on the part of the Plaintiff.

Therefore, the plaintiff's claim for this part is without merit to examine further.

3. Determination on the conjunctive claim

A. The assertion

The Plaintiff is obligated to protect the Plaintiff, which is an investor, as a company that entrusted or sold the fund sales (the investor protection duty). Accordingly, the obligation to explain the risks of the transaction (the duty to explain), customer intent and circumstances, and to encourage the Plaintiff, a general investor with insufficient experience in violation of the duty to protect investors, to make reasonable perception of the risks inevitably accompanying the Plaintiff’s transaction, and to make false and exaggerated recommendations for transactions involving excessive risks in light of the Plaintiff’s investment situation, which is the customer, as if there is no risk. ② The Defendant Asset Management Company entrusted the sale of the fund and provided accurate information to the Plaintiff through the Defendant Bank, a selling company, by creating an advertisement paper and LA document that there is no principal loss risk as to the fund of this case. As such, the Defendant Company breached the duty to protect investors by providing false information to the Plaintiff, which is an investor through the Defendant Bank, to the Plaintiff.

B. Occurrence of liability for damages

(1) Determination on Defendant Bank

Although executives and employees of a securities company actively recommended investment to customers of a securities company, in order to establish tort liability against investors in the event of loss as a result of investment, even if they do not require active deception as to whether to guarantee profit, they shall be deemed to fall under the following cases: (a) at least the course of transaction, method of transaction, customer’s investment situation (property status, age, social experience, etc.); (b) transaction risk and the degree of explanation on the transaction risk; and (c) where the solicitation is likely to interfere with the formation of correct awareness of the risk inevitably accompanying the transaction to general investors who lack experience, or actively encourage transactions involving excessive risk in light of customer’s investment situation; and (d) ultimately, it shall be deemed as an act having illegality by neglecting customer’s duty to protect customers (see, e.g., Supreme Court Decision 2000Da50312, Jan. 10, 203). This applies likewise to the case where Defendant bank solicits investors to purchase indirect investment trust goods pursuant to the former Investment Act.

Meanwhile, Article 56(2) of the former Telecommunication Act provides that "a selling company shall provide an investment prospectus in recommending investors to acquire indirect investment securities, explain its major contents," and Article 57(1) of the same Act provides that "any officer or employee in charge of the sales business at the selling company and the selling company shall not engage in any of the following acts. 1. 4. The act of soliciting investors to guarantee profits, such as guaranteeing investment principal; 4. The act of indicating that it may cause misconception or misunderstanding of important matters."

In light of the above facts, the Plaintiff’s act of purchasing OTC derivatives is difficult to understand not only the Plaintiff’s structure but also the general public with basic knowledge of derivatives due to its very complicated and difficult investment experience. ② The additional information register of OTC derivatives trading certificate of the instant case where most of the instant funds invested is stated to the effect that it is appropriate for investors with knowledge and experience in financial and management issues to assess investment risks and disadvantages. ③ The employee of the Defendant Bank did not receive education on the structure of the instant fund and did not understand its nature or risk, and it merely emphasizes that “○○ Fund is a safe method for every quarter of five years’ maturity + 1.2%’s investment risk” fixed interest rate for each of the instant funds to be 5 years’ maturity, and that the Plaintiff’s act of purchasing OTC derivatives was an act of offering information about investment risk to the Plaintiff.

Therefore, the defendant bank is liable to compensate for the damages suffered by the plaintiff due to the above illegal acts as the employer of the employee in charge.

(2) Determination on Defendant Asset Management Company

A securities investment trust is an indirect securities investment scheme for the general public, under which risks are always caused by changes in the rate of return due to the type of securities or the timing, method, etc. of trading such securities, and its risks are bound to be borne by investors in principle. However, this premise is premised on the fact that accurate information about the composition of an investment trust, subject matter of investment, importance of investment, etc., which is an important matter of risk burden, is provided and that investors’ decision on investment is made appropriately. Even in cases where a trust company does not directly take charge of sales of beneficiary certificates by entering into a trust agreement with a seller, a truster company, who is the founder and operator of an investment trust, is a party directly interested in the sale of beneficiary certificates, who has established a trust agreement and entered into a trust agreement with the trustee company in accordance with such terms and conditions after obtaining prior approval from the Financial Supervisory Commission, shall establish a trust agreement jointly with the trustee company, and shall prepare an investment prospectus and provide the distribution company with the investment prospectus when recommending investors to acquire indirect investment securities (see Article 56(1) and (2) of the former Investment Trust Act).

(4) In light of the above legal principles, even if the underlying facts acknowledged as above are different from that of the instant OTC derivatives, the fact that most of the instant OTC derivatives were incorporated into the financial investment company by taking account of credit ratings Nos. 6 and 9, and thus, the term “non-protection of principal” is indicated in the U.S.’s name, unlike other Tbanks, that the instant OTC derivatives did not appear to have been able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able.

(3) Sub-decisions

Therefore, the defendants are liable for damages sustained by each plaintiff due to joint tort in violation of the duty to protect investors.

C. Scope of damages

(1) Damages

The Plaintiff asserts that, if the Defendants’ tort was not committed, the Plaintiff invested in financial instruments that guarantee the interest rate equivalent to government bonds or government bonds presented by the Defendants, the Plaintiff’s loss incurred by the Plaintiff is the amount calculated by deducting the refund for early termination and the fund income received by the Plaintiff from the amount calculated by adding 5.49% per annum, which is the interest rate of government bonds at the time of purchase.

However, there is no evidence to prove that the Plaintiff would have subscribed to government bonds or similar goods if it had given full explanation of the Fund.

Therefore, the amount of damages suffered by the Plaintiff is KRW 193,675,260, which is the remainder after deducting the Plaintiff’s early termination refund received from the principal of the Fund’s subscription and the quarterly final settlement revenue (=300,000,000 won of the subscription principal - KRW 59,562,2090 of the early termination refund – KRW 46,762,650).

(2) Limitation of liability

On the other hand, as seen above, under the principle of self-responsibility, the Plaintiff should make an investment after carefully ascertaining the concept of the investment trust or the content, structure of profit and loss, and investment risk of the trust product invested under its own responsibility, and make an investment. It also states that the Plaintiff may cause loss to the investment principal in terms of the transaction application at the time of joining the fund, and that even though it is recommended to read the terms and conditions and the investment prospectus, it does not confirm the contents thereof. Since the amount invested by the Plaintiff is considerably larger than KRW 300 million, it must be careful in investment, it is not proper to review the fund of this case, but it is not proper. The Plaintiff acquired considerable fund revenue prior to the cancellation of the fund of this case. The Plaintiff’s fundamental reason why the Plaintiff suffered loss is due to the global financial crisis that occurred due to the failure of the hubF base in addition to the explanation of the fault of Defendant Bank employees of the U.S., the Plaintiff’s negligence should be calculated, but it is reasonable to view the Plaintiff’s fault ratio as 60% and limit the Defendants’s liability.

In this regard, the defendant bank asserts that since the quarterly final settlement revenue received by the plaintiff is subject to the deduction for profit and loss, the defendant bank shall set off the amount calculated by deducting the termination refund from the principal of the fund of this case, which is the amount of loss suffered by the plaintiff, and then deducted the quarterly final settlement revenue as the deduction for profit and loss.

On the other hand, in order to allow the deduction for profit and loss in calculating the amount of damages for illegal acts, there should be a proximate causal relation between the victim's new profit and the tort (see Supreme Court Decision 2002Da33502, Oct. 11, 2002, etc.). Since the quarterly final profit of the fund of this case was naturally planned at the time of joining the fund of this case, it cannot be deemed that the plaintiff newly received profit except that the plaintiff subscribed to the fund of this case due to the defendants' illegal acts. Thus, the claim of the defendant bank is without merit.

(3) Sub-decisions

Therefore, the Defendants are obligated to pay to each of the Plaintiff the amount of KRW 77,470,104 (=193,675,260 x 40%) and to pay damages for delay calculated at each of the 20% annual rates prescribed by the Civil Act from November 11, 2005, which is the date of joining the fund, to August 14, 2009, where the Defendants are deemed reasonable to dispute the existence and scope of the obligations.

4. Conclusion

Therefore, the plaintiff's main claim is dismissed as it is without merit, and the conjunctive claim is justified within the above scope of recognition, and the remainder of the conjunctive claim is dismissed as it is without merit. It is so decided as per Disposition.

Judge Choi Jong-so (Presiding Judge)

Note 1) Shepher: It was derived from the French language meaning “part” of the securities, bonds, etc. that mean “part of the securities, bonds, etc. that are divided.”

Note 2) Retroactive claim: junior claim