K&C Co., Ltd. (LAS Law Firm, Attorneys Jeong Jong-sik et al., Counsel for the defendant-appellant)

Puden Social Investment Securities Co., Ltd and one other (Attorneys Jeon Soo-soo et al., Counsel for the plaintiff-appellant)

April 15, 2010

1. The plaintiff's claims against the defendants are all dismissed.

2. Litigation costs shall be borne by the plaintiff.

The Defendants jointly and severally pay to the Plaintiff the amount of KRW 19,50,000 and KRW 13,900,000 among them, from December 21, 2005, from the remainder of KRW 5,650,000,000, the amount of KRW 6% per annum from June 21, 2006 to the delivery date of the duplicate of each instant complaint, and from the next day to the day of full payment, the amount of KRW 20% per annum from the next day to the day of full payment.

1. Basic facts

A. Status of the parties

(1) The Plaintiff is a stock company established for the purpose of purchasing assets and liabilities related to the liquidation of insolvent financial institutions and taking over and arranging them under the Depositor Protection Act, and was changed from the first reorganization financing corporation to the trade name as of November 10, 2009.

(2) Defendant Pun Social Investment Securities Co., Ltd. was established for the purpose of engaging in a securities investment trust business under the Securities Investment Trust Business Act with the trade name as the initial national investment trust corporation, and was changed to a national investment trust securities corporation on February 25, 1997, a national investment trust securities corporation on February 28, 198, a national investment trust securities corporation on September 22, 1998, a national investment trust securities corporation on April 1, 199, a modern investment trust corporation on April 1, 199, and a modern investment trust corporation on September 21, 2001 (hereinafter collectively referred to as “Defendant securities”), and was changed to a mutual name as of February 27, 2004 (hereinafter collectively referred to as “Defendant securities”), and Defendant Pun Social Asset Management Co., Ltd. was established for the purpose of running a securities investment trust business under the Securities Investment Trust Business Act with the trade name as the initial national investment trust management corporation (hereinafter referred to as “former 204.”).

B. Conclusion of the instant investment trust contract

(1) Around November 1996, the Defendant’s securities primarily raised funds from domestic investors for the purpose of investing in and operating the foreign financial products related to Russia government bonds, and concluded an investment trust agreement with the Non-Party Cho Ho Bank on November 5, 1996 with respect to the said investment trust with the following contents.

(A) The Defendant Securities, a truster company, shall determine all matters concerning the management of the investment trust property, such as the acquisition, sale, and exercise of rights, of the securities belonging to the investment trust property, and shall instruct the interesting bank to execute it.

(b) An interesting bank shall carry out the business related to the management of investment trust properties, including the custody of securities, by executing the instructions given by Defendant Securities, a truster company, with respect to the management of investment trust properties.

(C) The Defendant’s securities may enter into a financial futures contract in accordance with foreign exchange management regulations in order to prevent the risks of investment trust properties arising from the exchange rate fluctuations, interest rate fluctuations, and stock price fluctuations.

(2) Meanwhile, the main contents of the instant investment trust’s terms and conditions governing the truster, trustee, and beneficiary’s rights and obligations are as follows (hereinafter “instant investment trust terms and conditions”).

Article 2(3) of the Terms and Conditions : The term "beneficiary" means a person who holds beneficiary certificates issued under an investment trust contract concluded between the truster and the trustee.

Article 2(4) of the Terms and Conditions : The term "beneficial interest" means the rights arising from the investment trust contracts concluded between the truster and the trustee, which are all rights to redeem the principal of the investment trust and distribute profits from the investment trust, to repurchase beneficiary certificates, to peruse the books and documents concerning the investment trust property or to request the delivery of certified copies or copies thereof.

Article 22: Profits and losses incurred by instructions of a truster in connection with the operation of investment trust property shall be counted in the investment trust property and reverted to beneficiaries.

Article 24 (1): Expenses incurred in managing the investment trust property shall be borne by the beneficiary, and the trustee shall withdraw and pay from the investment trust property in accordance with the instructions of the truster.

Article 24 (2) : The term "expenses" in paragraph (1) means trading fees for securities that belong to the investment trust property, overseas investment advisory fees, and other similar expenses.

C. Conclusion of the gift exchange contract of this case

(1) The said investment trust property was invested in the purchase of Russia government bonds according to the original purpose. The Defendant’s securities concluded a forward exchange contract with Russia to avoid exchange risk, such as the assessment of US dollars at the time when the principal and interest of the said investment was repaid from Russia (hereinafter “instant forward exchange contract”).

(2) 조흥은행은 이 사건 선물환계약과 관련하여 자신이 환율 변동으로 입을 수 있는 위험을 분산하기 위하여 국외 금융기관인 엥도에스은행과 사이에 조흥은행이 이 사건 선물환계약에서 정한 미화의 매도인이 되고, 엥도에스은행으로부터 원화를 매수하는 내용의 별도의 선물환거래 계약을 체결하였다.

D. Payment of damages on the gift exchange contract of Defendant securities

(1) On February 28, 1998, the Defendant’s management agreed to take over the entire business of the Defendant’s securities based on all securities investment trust agreements between the Defendant’s securities and Choung Bank. Accordingly, the status of the truster under the instant investment trust agreement was changed from the Defendant’s securities to the Defendant’s management.

(2) 그 후 러시아가 1998. 8. 17. 채무지급유예(모라토리엄)를 선언하여 위 투자원리금의 상환이 사실상 불가능하게 되자, 피고 운용은 이 사건 선물환계약의 결제일이 도래하기 전부터 피고들이 이 사건 선물환계약의 당사자가 아니라고 주장하면서 조흥은행에 대하여 위 계약상 의무의 이행을 거절하였고, 이에 따라 조흥은행은 위 엥도스에스은행과 사이에 체결된 후속 선물환거래 약정에 따른 결제를 이행하기 위하여 당시의 환율에 의하여 미화를 매입하여 환손실이 발생하였다는 이유로 2000. 6. 20. 이 사건 선물환계약에 대해서 매도인인 피고들을 상대로 하여 손해배상청구의 소를 제기하였다.

(3) On Jun. 22, 2001, Seoul District Court Decision 2000Da43814, which rendered a favorable judgment on the above case, and the defendant securities paid the amount of KRW 66,267,151,693 as the above judgment. On Aug. 21, 2003, the appellate court of the above case paid the amount of KRW 49,173,60,00 as principal and KRW 65% interest per annum from November 4, 1998 to the day of full payment. However, on Nov. 4, 1998, the appellate court of the above case decided to compel payment of KRW 9,317,386,784 as part of the provisional payment of the first instance judgment of the first instance court, KRW 365,975,97550 interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest interest.

E. Sale by the Defendants and acquisition by transfer of the Plaintiff’s issue assets

(1) As above, as long as it is practically impossible to repay the principal and interest of the investment trust of this case, Defendant Securities were to redeem beneficiary certificates to general investors and to be holders of such beneficiary certificates. In the process of insolvency by the Defendants, Korea Deposit Insurance Corporation decided to sell Defendant Securities and its subsidiaries to Fuden Social Finance Corporation, which is a U.S. corporation, and entered into a stock acquisition agreement (Sock Plock Purch Acssesese Acs. hereinafter “instant stock acquisition agreement”) with Defendant Securities on November 25, 2003. Under the aforementioned stock acquisition agreement, Defendant Securities issued new stocks with 10,000,000 won (hereinafter “instant stock acquisition agreement”). On February 27, 2004, the Korea Deposit Insurance Corporation acquired 19,1160 million won (hereinafter “D& 16,500,000,000 won) so that Defendant Securities can be appropriated on the balance sheet to constitute a capital amount of 50 billion won.

(2) In addition, under the above stock acquisition agreement, Fuden Social Finance among the assets held by the Defendant securities agreed to transfer to a person designated by the Korea Deposit Insurance Corporation the issue set that Fuden Social Finance does not want to acquire. Accordingly, the Plaintiff acquired the beneficiary certificates of the instant investment trust from the Defendant Securities on February 26, 2004.

F. Exercising indemnity against Defendant Securities

Unlike the fact that it was assessed that there was no value of assets at the time of the investment trust of Russia, the sum of KRW 13,900,000,000 from February 3, 1999 to February 21, 2004, and the sum of KRW 19,50,000,000 thereafter, from June 21, 2006, the Defendant’s securities collected KRW 19,50,000,00 for each of the total amount of KRW 5,650,000 from February 3, 209 to June 21, 2006, and the Defendant’s securities paid damages as stated in the above Section D, on the ground that the investment trust of this case had a claim for indemnity against the Defendant’s management of the investment trust of this case, including the amount of KRW 13,90,00,000,000 from June 21, 2006 to KRW 15,600 through 70

2. Plaintiff’s request

The Plaintiff held the beneficiary certificates of the instant investment trust. Accordingly, pursuant to Articles 2 and 30 of the Terms and Conditions, the Plaintiff, as a beneficiary, has the right to claim the payment of the amount of profit distribution following the termination of the fiscal term of the investment trust or the repayment following the termination of the investment trust contract to Defendant Operation, who is the operator of the instant investment trust, as the beneficiary under Article 2 and 30 of the Terms and Conditions. ① Defendant Securities used the status of the parent company in charge of managing the instant investment trust property to receive KRW 19,50,000 from the instant investment trust property despite the absence of the right to claim reimbursement against the instant investment trust property, thereby infringing upon the Plaintiff’s claim. As such, Defendant Operation arbitrarily paid the instant amount to Defendant Securities that did not have any right to the amount of the money collected in violation of the duty of due care as a good manager, and thus, Defendant Operation arbitrarily paid the said amount to the Plaintiff due to nonperformance of obligation corresponding to the amount, and ③ Defendant’s liability is based on

3. Determination on the issues of this case

A. Existence of claim for indemnity against Defendant Securities

(1) The parties' assertion

(A) The Defendants asserted that the Defendant’s securities paid approximately KRW 55,909,536,111 on the basis of the non-performance liability of the gift exchange agreement entered into for the preservation of the investment trust property of this case to the non-party interesting bank, and therefore, the Defendant’s management, which is responsible for the management of the investment trust property of this case, paid KRW 19,550,000,000, which was introduced into the investment trust property of this case, to the Defendant’s securities.

(B) On this ground, the Plaintiff asserts that the Defendant’s damages incurred by the Defendant’s Securities to the Clearing Bank due to the nonperformance of the gift exchange contract of this case are merely losses incurred as a party to the gift exchange contract, and that the expenses incurred in managing the investment trust property as stipulated in Article 24(2) of the Investment Trust Terms and Conditions cannot be deemed as expenses incurred in managing the investment trust property of this case. Thus, the Plaintiff cannot

(2) In light of the following circumstances acknowledged by the evidence examined earlier, i.e., (i) the instant investment trust is primarily responsible for investing in Russia government bonds, etc.; (ii) there was a need to avoid the risk of investment trust property due to changes in the exchange rate of foreign currency assets; and therefore, (iii) the expenses incurred in the management of investment trust property under the terms and conditions of the instant investment trust agreement shall be borne by the beneficiary; and (iv) the expenses incurred in the conclusion of a gift exchange agreement and the performance of legal obligations arising therefrom are deemed to have been sufficiently anticipated as operating expenses in the instant investment trust property; and (iii) the profits and losses arising from the direction of the Defendant securities, the truster, in relation to the management of the instant investment trust property, are all appropriated in the investment trust property as long as the Defendant securities were not in violation of the fiduciary duty, and thus, it is reasonable to deem that the transfer of gift contracts to avoid the risks of the investment trust property belongs to the beneficiary, and thus, it is reasonable to consider the need to compensate the amount of the instant investment trust property to the beneficiary.

B. Whether the ship's duty of care is violated

(1) The plaintiff's assertion

(2) Even if the Plaintiff’s payment of damages for Defendant’s domestic securities is recognized as expenses necessary for the management of the instant investment trust property, the Defendants, as of December 31, 1996, invested 20.1% of the State bonds of Russia in 22057, a single bond in the management of the instant investment trust property, as of August 17, 1998, and violated relevant Acts and subordinate statutes, such as two issues or two items, and (2) as to the conclusion of the instant gift exchange contract, the amount substantially exceeds the original (83 billion won) amount of the investment trust property (83 billion won) by entering into a long-term gift exchange contract of the same item under the former Securities Investment Trust Business Act and the investment trust agreement of this case, and thus, the Defendants have increased the risk of investment by failing to pay damages to the Defendants for the reason that they had been entrusted with the management of the investment trust property at the time of 197,000 won.

(3) Determination

(A) Article 17(1) of the former Securities Investment Trust Business Act (amended by Act No. 558 of Sep. 16, 1998; hereinafter the same) provides that a truster company shall be responsible for the management of the trust property as a good manager and protect beneficiaries’ interests. Specifically, how to determine the items and rates of investment at a specific point of time should be determined by comprehensively taking into account the relevant statutes, the contents of the terms and conditions of investment trust, the purpose and method of the management of the trust property, and the market situation and prospects at that point of time. Therefore, if a truster gives careful instructions on the management of the trust property with the belief that it is consistent with the highest interest based on the collected information to the extent possible, it shall be deemed that the trustor fulfills its duty of care as a good manager in the course of operating the investment trust (see Supreme Court Decision 2001Da11802, Jul. 11, 2003).

(B) We look back to the instant case, it is difficult to conclude that Defendant Securities Investment Trust Business Act and its Enforcement Decree were in violation of the duty of due diligence solely on the ground that Defendant securities acquired some items beyond the limit as alleged by the Plaintiff, even though it did not go beyond the limit permitted by social norms, it is difficult to conclude that Defendant Securities Investment Trust Business and its Enforcement Decree violated the duty of due diligence. In particular, it is difficult to view that the instant investment trust was scheduled to make a concentrated investment in the State bonds of Russia, which are high risk high-risk high-risk high-risk high-risk high-risk high-risk high-risk high-risk high-risk high-risk high-level government bonds, even if it fails to repay all of the State bonds with the payment deferment declaration of Russia and its Enforcement Decree.

(C) In addition, according to the facts and evidence as seen earlier, it is difficult to readily conclude that the Defendant’s securities concluded a gift exchange contract on a scale exceeding the original amount of the instant investment trust property and concluded the gift exchange contract on a scale exceeding USD 18% [100 x (985 billion-83 billion) / 83 billion won] and that it violated the fiduciary duty on the ground that it is difficult to conclude that it violated the fiduciary duty as a result of the fact-finding, on the ground that it was anticipated that there was a need to avoid the risk of exchange rate fluctuations in foreign currency assets as seen earlier, and that the instant investment trust concluded a gift exchange contract on a scale exceeding KRW 18% [100 x (9855 billion-83 billion) /83 billion

(D) Meanwhile, according to Gap evidence Nos. 6 and 16, since around 197, since Russia's economic situation was not good and the State's credit rating was continuously lowered. Although the article dealing with Russia's economic crisis at the time of the operation of the investment trust of this case was included in a domestic newspaper, it is difficult to conclude that the defendant's securities were anticipated to pay Russia's delayed payment or that it was not anticipated even if it was anticipated, and that there was no other evidence to acknowledge the defendants' violation of the duty of care. Thus, the plaintiff's above assertion is without merit without further need to determine the remainder of the claim (the plaintiff's claim lawsuit filed against the defendant against the ordinary investors of Russia investment trust and similar investment trust, which is a national Vietnam of the same structure, and the Supreme Court Decision 2001Da10458 Decided July 25, 203, which denied the defendant's duty of care due to the violation of the duty of care due to the management of the investment trust property).

4. Judgment on the plaintiff's conjunctive assertion

A. The Plaintiff’s assertion: (a) Defendant Securities has already been treated as damages under the gift exchange contract of this case as losses, and has been actually compensated by the Korea Deposit Insurance Corporation; and (b) once it again exercises its claim for indemnity, it constitutes double unjust enrichment; (c) Defendant Securities did not know from February 199 that repayment was made to the account of the instant investment trust property, even though it was well known that it had been made into the account of the instant investment trust property, and did not include the ownership of the claim for indemnity as an asset on the balance sheet of the instant securities; and (d) Defendant Operation did not include the amount of unpaid expenses arising from the gift exchange lawsuit to the head of the trust account of the instant investment trust; and (e) stated it in the open book on February 24, 2004, immediately before the transfer of the beneficiary certificates to the Plaintiff; and (iii) the Defendants’ assertion that it would not have been granted the Plaintiff’s claim for reimbursement of the said public fund by means of unlawful act or unlawful exercise of the right to indemnity against the instant trust property’s claim for reimbursement of this case.

B. The waiver of the Plaintiff’s claim does not necessarily require an explicit declaration of intent, and even if it can be seen as waiver of the Plaintiff’s claim by means of any act or expression of intent, it should be recognized. However, such recognition must be determined by strict interpretation of the obligee’s act or expression of intent in accordance with the pertinent legal relationship (see, e.g., Supreme Court Decisions 86Meu1907, 1908, Mar. 24, 1987; 94Da4774, 4781, Feb. 10, 195; 1). It is difficult to readily conclude that the Plaintiff’s claim for the waiver of the Plaintiff’s claim constitutes an act of waiver of the Plaintiff’s claim under the principle of trust and good faith, and that it is difficult to recognize that the Defendants’ claim for the waiver of the Plaintiff’s claim for the payment of the Plaintiff’s claim for financial expenses out of the total amount of the Plaintiff’s existing shares and the Korea Deposit Insurance Corporation’s use of the claim for reimbursement of new shares under the law.

5. Conclusion

Therefore, the plaintiff's claim against the defendants of this case is dismissed as it is without merit. It is so decided as per Disposition.

Judge Yellowified (Presiding Judge) For the highest number of hydrogens