Hyundai Marine Fire Insurance Co., Ltd. (Law Firm Geosung, Attorneys Ro-won et al., Counsel for defendant-appellant)

Han Bank Co., Ltd. (Law Firm KEL, Attorneys Han-hwan et al., Counsel for the plaintiff-appellant)

October 20, 2004

1. The plaintiff's main claim is dismissed.

2. The defendant shall pay to the plaintiff 1,217,439,053 won with 6% interest per annum from November 25, 1998 to November 24, 2004 and 20% interest per annum from the next day to the day of full payment.

3. The plaintiff's remaining preliminary claims and the second preliminary claims are dismissed, respectively;

4. Of the costs of lawsuit, 3/5 shall be borne by the Plaintiff, and 2/5 by the Defendant respectively.

5. Paragraph 2 can be provisionally executed.

The primary claim: the defendant shall pay to the plaintiff 3,897,450,866 won and 1,713,636,166 won with 6% interest per annum from November 29, 199 to the service date of the duplicate of each complaint of this case from January 10, 200 to the service date of the duplicate of each complaint of this case, and 20% interest per annum from the next day to the day of complete payment.

The first preliminary claim: the defendant shall pay to the plaintiff 3,425,810,406 won and 1,930,887,581 won among them, 1,494,922,825 won per annum from January 25, 1998 to the service date of the duplicate of each complaint of this case from January 9, 1997 to the service date of the duplicate of each of the complaint of this case, and 20% per annum from the next day to the day of full payment (the claim for damages due to default).

Preliminary Claim 2: The defendant shall pay to the plaintiff 3,425,810,406 won and 1,930,887,581 won among them, 1,494,922,825 won per annum from January 25, 1998 to the service date of the duplicate of each complaint of this case from January 9, 1997 to the service date of the duplicate of each of the complaint of this case and 20% per annum from the next day to the day of full payment.

1. Basic facts

The following facts are no dispute between the parties, or evidence of subparagraph 1 through 3, evidence of subparagraph 2-1 through 3, evidence of subparagraph 3, evidence of subparagraph 1, 2, evidence of subparagraph 5 through 8, evidence of subparagraph 1-1 through 12, evidence of subparagraph 1, 2, evidence of subparagraph 5-2, evidence of subparagraph 3-1 through 12, evidence of subparagraph 1, 2, evidence of subparagraph 3-1, subparagraph 4 of subparagraph 5, evidence of subparagraph 5-1, 2, evidence of subparagraph 6-2, evidence of subparagraph 10 through 13, evidence of subparagraph 14-1 through 17, evidence of subparagraph 15 through 17, evidence of subparagraph 20, evidence of subparagraph 15 through 20, evidence of subparagraph 21, evidence of subparagraph 27-1, evidence of subparagraph 27, evidence of subparagraph 3-1 through 28, evidence of subparagraphs 3-2, and evidence of subparagraph 3-1 through 28.

A. A specified money trust contract between the Plaintiff and the Defendant

(1) On November 28, 1996, the Plaintiff entered the trust amount in KRW 5 billion with the Defendant; the trust period from November 28, 1996 to November 28, 199; the date of original delivery; November 29, 199; the beneficiary as the Defendant; and the trust amount management as described in paragraphs (2) and (3); and the “one Trust” as stated in paragraphs (2) and (3); the trust account number 175-0068-068-0252; the trust amount in KRW 1.5 billion; the trust period from January 9, 1997 to November 28, 1999; and the trust period was 1.5 billion to the Defendant; and the trust number 00-10-508 (2) and (3) was modified to the trust number 80-108 (5) and 208-5).

(2) Each of the instant trust deeds is stipulated as follows.

Article 4 (Operation of Trust Money): The Plaintiff entered the trust money in the form of “acquisition or purchase of securities authorized by the Minister of Finance and Economy” (in the form of the original contract, this part shall be recorded in the form of the original contract, but in the form of the trust contract, the text thereof shall be sealed. The second trust contract of this case shall be sealed only by rubber that “acquisition or purchase of securities authorized by the Minister of Finance and Economy” is “acquisition or purchase of other securities.” On the other hand, the original contract of this case submitted by the Defendant is indicated as “acquisition or purchase of government bonds, public bonds, corporate bonds, etc.” in the form of the second trust contract of this case where the original contract of this case submitted by the Plaintiff is without any such indication, and the Defendant shall operate the trust money in accordance with the direction of the Plaintiff. However, if there is a balance in operation as designated by the Plaintiff, it may be clearly anticipated that the Defendant will incur loss or loss to the trust property as a result of changes in the trust contract.

Article 6 (Preservation of Originals and Satisfaction of Benefits): This trust shall not be sufficient to preserve the originals and to satisfy the interests.

Article 7 (Reversion of Profit and Loss): Profits and losses accruing from trust property shall be reverted to the beneficiary in full, and the defendant shall fulfill his duty as a good manager in managing trust property.

Article 10 (Trust Remuneration): Where the defendant manages the entrusted property, the amount calculated by the following rate of remuneration shall be paid to the defendant on the business day following the day prescribed in Article 11, and where the plaintiff fails to pay it on the prescribed date, the defendant may deduct it from the original of the entrusted property or operational profits (the plaintiff and the defendant did not specify the trust fee rate in the contract).

Article 14 (Termination of Trust and Delivery of Trust Property): When the trust is terminated due to the expiration of the term of the trust or other reasons, the defendant shall prepare a final statement of account and deliver the trust property to the beneficiary in money after obtaining approval from the beneficiary: Provided, That where it is impracticable to liquidate and recover the trust property from among the management trust property or where there are unavoidable circumstances, it shall be delivered according to the current status of the management trust property, and the

Article 20 (Consultation): Matters not provided for in this contract shall be governed by the Trust Act and the Trust Business Act.

(3) 한편 이 사건 각 신탁계약서는 앞서 본 계약내용이 기재된 부분과 계약서 제4조에서 지정한 신탁금의 운용방법을 구체적으로 표시하기 위하여 “별첨 신탁재산의 운용방법(다음 중 택일)”이라는 표제하에 “1. 은행계정대, 2. 대출, 3. 국·공채, 회사채의 인수 또는 매입, 4. 주식의 인수 또는 매입, 5. 콜론, 6. 당행 신용카드 계정으로부터 발행한 채권의 인수, 7. 기타 재정경제원장관의 인가를 받은 유가증권의 인수 또는 매입”이 예시되어 있는 부분(이하, ‘별첨’이라 한다)도 함께 구성되어 있었는데{계약서 전체가 1장으로 된 용지로 되어 있고 그 1장을 3부분으로 나누어서 그 왼쪽과 가운데 면은 위 (2)항 기재와 같은 계약내용이 기재되어 있고, 그 오른쪽 면은 그 신탁금의 운용대상을 구체화한 별첨으로 그 운용대상을 체크(∨)하도록 구성되어 있다}, 이 사건 제1신탁계약서의 별첨에는 아무런 표시가 되어 있지 않았으나, 이 사건 제2신탁계약서의 별첨에는 계약서 제4조에 고무인으로 날인한 ‘기타 재정경제원장관의 인가를 받은 유가증권의 인수 또는 매입’부분은 물론 계약서 제4조에 고무인으로 날인되지 않은 ‘3. 국·공채, 회사채의 인수 또는 매입’부분 모두에 볼펜으로 체크(∨표시)가 되어 있었다(원·피고가 각자 보관하고 있던 계약서 별첨 모두에 체크표시가 되어 있었다).

(4) Article 8-2 of the Trust Business Act provides that, based on Article 3 of the Trust Business Act, the Minister of Finance and Economy shall, when dealing with the trust business under the Trust Business Act and the trust banks concurrently engaged in the trust business (the replacement with the Trust Business Supervision Regulations on April 1, 1998) provides for matters to be observed, “a trust company shall require its truster to designate the method of operating trust funds when it concludes a contract other than a specified money trust or gold trust (which appears to mean a trust other than money trust), and shall specify in its contract the method of operating trust funds in one of the methods stipulated in the subparagraphs of Article 10(1).” Article 10(2) provides that, “If the trust company designates the method of operating trust funds within the scope of one of the methods stipulated in the above subparagraphs of paragraph (1) of the Trust Business Act, the trust company shall operate the trust funds within the scope of 1 through 7, as designated by the truster, the trust company shall operate the funds within the extent of 2,000 if it is obviously anticipated that the trust fund would operate funds within the trust fund of this case.

B. Preparation and issuance of a letter of undertaking by Defendant 2

From the date of conclusion of the instant trust contract at the Plaintiff’s request, the Defendant’s two business parts of the Defendant stated, “I, at the time of the conclusion of the instant trust contract, promise to guarantee the Plaintiff the annual effective return rate of 13.05% (average 14.83% per annum, maximum 4.50% per annum, maturity amount of 7,225,000,000 won) until November 28, 1999 (original delivery date: November 29, 199); “I, after one week from the date of the conclusion of the instant trust contract, undertake to guarantee the Plaintiff the annual return rate of 1,50,000,000 won,” and “I, at the time of the conclusion of the instant trust contract at one week after the date of the instant trust contract, undertake to guarantee the Plaintiff the annual return rate of 13.05% per annum, total annual return rate of 1,500,000 won and annual return rate of 1,500,00,000.

On the other hand, since around November 1995, the Ministry of Finance and Economy requested each bank to present an expected return rate on the trust products for actual dividends in the course of depositing funds. Accordingly, the Ministry of Finance and Economy notified that it did not comply with such demand, and that the act of entering into a back contract on the trust fund in the course of being entrusted with and managing the trust fund was a guideline to severely reprimand. On November 16, 1996, immediately before entering into each of the instant trust contracts, the court judged that the agreement on guaranteeing return on investment by the investment trust company was null and void, and that fact was reported through the media.

C. Operation of the defendant's trust property

(1) Details of management of the first trust property of this case

(A) The defendant purchased 5,160,700,00 won at the face value of 1,00 on November 28, 1996, which is 196 under the trust contract of this case, and thereafter incorporated it into the first trust property (purchase) before March 31, 1998, and the guaranteed bill and the CP issued by the Treatment Co., Ltd. (hereinafter referred to as "CP"), which are not accepted or guaranteed by financial institutions, such as banks, trust companies, merchant banks, and guaranteed insurance companies; hereinafter referred to as "CP"), were transferred into trust property and again transferred 90,00,000 won at the face value of 10,000,000 won (attached 1,000,000 won at the face value of 1,000,000 won at the face value of 1,000,000 won at the face value of 98,000 won at the face value of 98,000,0000 won,000 won.

(B) Meanwhile, from the beginning of 198, Dong Construction was faced with the insolvency crisis due to the aggravation of its financial status. The creditor financial institutions of Dong Construction constituted a creditor financial council of Dong Construction on May 21, 1998 and established measures such as joint credit support for Dong Construction, repayment deferment of existing bonds, and exemption from interest, but the financial status of Dong Construction was not recovered. Ultimately, the creditor financial institutions did not make a call notice to promote the corporate improvement of Dong Construction on August 24, 1998 and decided to suspend the exercise of credit guarantee obligations, such as a claim for debt redemption, and the request for performance of debt guarantee obligations after the decision was made on September 1, 1998 on September 1, 1998 (the credit rating on the bonds issued by Dong Construction was 100 to 3.5,000,000,000 after the decision made on December 31, 1997). Accordingly, on May 13, 1992, CCC was not 194.

(C) When Dong Construction was the object of corporate restructuring work as above, around November 6, 1998, the defendant refunded 1,943,900 won to 1,90,000 won which were assigned to the trust property of this case, and on that day the issuance date which the defendant held in another account is 1,931,540,00 won (the book value is 1,930,87,581 won) 178 corporate bonds of this case (the value of 1,930,97,581 won) 90,000 won which were 1,969,00 won and 99,000 won which were 1,96,00 won and 96,00 won which were 9,00 won and 96,00 won which were 9,000 won and 9,000 won which were 19,00 won and 9,000 won which were 19,000 won and 19,00.

(D) On the other hand, from August 3, 1998 to May 31, 1999, credit assessment of Daewoo Industries Co., Ltd. was conducted at A-B level, but since the IMF crisis, it was difficult for Treatment Group to raise funds. The Financial Supervisory Commission regulated the maximum number of the CP issued by Treatment Group on July 22, 1998, and limited the issuance of corporate bonds of large companies by setting its holding limit on corporate bonds issued by large companies on October 28, 1998. Thereafter, on October 29, 1998, 9000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000).).).

(E) The defendant issued 415,630,760 won (the total value of 415,50,209) on March 12, 201, 201, plus 30.30,000,000,000,000 24.38,000,000,0000 2.17.38,000,000,000,000 24.36,000,000,000,000 2.37.1,00,000,000,000,000 24.3,06,00,000,000 (the total value of 13,50,000,000,0000,0000,0000,000,0000) on 24.3,06,07,000

(2) Management details of the instant trust property No. 2

(A) On January 9, 1997, the date of concluding the contract under the instant trust contract, the Defendant, on December 31, 1999, included KRW 1,495,660,00 (the book value 1,494,922,82,825) in the face value of the company’s corporate bonds (hereinafter “corporate bonds”) 190,000 (the book value 1,495,660,60,000 (the book value 1,494,92,825) in the instant trust property.

(B) As seen earlier, since around 1998, the liquidity of the entire affiliated companies of the Treatment Group including the treatment of the Co., Ltd. has deteriorated, and eventually, the company was divided into treatment construction and treatment-based personal information through the resolution of the temporary general meeting of shareholders on July 22, 2000, and treatment became a surviving company.

(C) Around March 18, 2001, the Defendant purchased 88,543,072 corporate bonds of Daewoo Co., Ltd. (the book value of KRW 88,528,44) from the instant secondary trust property, and then purchased 190 corporate bonds (the “treatment International Corporate Bonds”) with 20,191,410 (the book value of KRW 20,18,074), 190 corporate bonds issued by Daewoo Construction (the book value of KRW 68,315,62 (the book value of KRW 68,340,370) with 190 corporate bonds (the book value of KRW 50,50) with 50,00 corporate bonds with 50,000 corporate bonds with 50,050,000 corporate bonds with interest on each of them as indicated in attached Table 2, and 195,50,015,000 corporate bonds with 50,015,505,05,01

(3) On the other hand, around August 14, 1999, the Plaintiff asked the Defendant about whether each of the instant trust assets included the assets related to the treatment group, and the Defendant notified the Plaintiff that treatment Heavy Industries Corporate Bonds were incorporated into the instant trust property as the instant trust property according to the details such as the date and amount as seen earlier in relation to each of the instant trust contracts in FAX, and that the company’s bonds were incorporated into the instant trust property as the instant trust property as the instant trust property.

D. Plaintiff’s request for the payment of trust money and Defendant’s payment details

(1) On October 22, 1999, the Plaintiff notified the Defendant of the following: “Around November 22, 1999, the Plaintiff requested payment of the assets operated as treatment bonds in relation to each specific money trust of this case” and “In the case of some other banks, payment of treatment bonds shall be performed, the Defendant shall not be deemed to have fulfilled his duty of due care as a good manager under Article 38 of the Trust Act, such as inducement of subscription through a letter of undertaking guaranteeing the rate of principal and interest and the agreement at the time of accession, and the purchase of treatment Capital CP through a voluntary agreement,” and “if there is any smooth resolution about the payment of treatment bonds, it shall be claimed for damages.” On November 15, 1999, the Plaintiff notified the Defendant of the above contents.

(2) After that, the Defendant paid to the Plaintiff a sum of KRW 5,520,522,727 with respect to the instant trust contract (including KRW 2,245,074,556, Nov. 29, 199, which was paid on November 29, 199, including KRW 176,035,201 ( KRW 50,02,217, June 6, 1999; KRW 63,016,492, KRW 63,492, August 6, 199, and KRW 016,016,492) with respect to the instant trust contract).

(1) On December 13, 200, 12,00,745, 363, 265, 367, 345, 275, 274, 299, 3,069, 152, 152, 187, 245, 274, 561, 782, 896, 545, 5314, 226, 743, 745, 2636, 365, 207, 364, 375, 365, 207, 347, 345, 207, 345, 206, 365, 201, 347, 345, 206, 368, 1068, 345, 2567, 2565, 2675

On the other hand, with respect to the second trust contract of this case, the trust principal, etc. was not paid on the expiration date, and each trust interest was paid 9,050,565 won on August 10, 2001, and 8,230,007 won on December 26, 2002.

E. Current composition details and value of each trust property of this case

Current trust property of this case 1 contains 1,487,225,526 won (the book value 1,486,749,376 won) and 214,178,713 won (the book value 213,203,818 won) with a bank account book value (the book value 213,203,818 won) and 124,640,762 won with a bank account (the book value shall be added to interest calculated at a specified rate for the bank account) with a total of 360,00 won (the book value of 1,486,750, 3619, 3619, 360, 9750, 196, 360, 196, 196, 30, 196, 375, 297, 196, 397, 196, 395, 197, 75, 19, 20, 2, 36, 19, 2, 7, 3

However, among the trust property No. 1 of this case, the actual value of the company bond 178 among the trust property of this case is zero won, and the actual value of the company bond of Daewoo Heavy Industries is 213,203,818 won, such as the book value, and the actual value of the company bond of Daewoo Heavy Industries among the trust property No. 2 of this case is 0 won, and the actual value of the company bond of Daewoo Heavy Construction Co., Ltd. of this case is 18,639 won (the value assessed as 5,140 won as the paper of October 20, 2004 at the time of the closing of the argument of this case) is 95,804,460 won (the value assessed as 8,000 won as the paper of October 20, 204 at the time of the closing of argument of this case).

2. Judgment on the main claim

A. The plaintiff's assertion

The Plaintiff entered into a so-called "income rate of 7,25,00,00 won under the first trust contract, 2,176,500 won as agreed upon on the maturity date of each of the instant trust contracts (the first trust contract) at the time of signing each of the instant trust contracts. Since each of the instant trust contracts is merely a specified money trust in form or non-specified money trust, it is possible to guarantee an earning rate of each of the instant trust contracts. Even if each of the instant trust contracts is a specified money trust, and even if Article 11 of the former Trust Business Act (amended by Act No. 2064, Jan. 13, 1998) prohibits the original and profit satisfaction contract at the time of each of the instant trust contracts, it is merely a regulated provision, and thus, the agreement of 20,000 won and interest rate of 25,000 won and interest rate of 20,000 won and interest rate of 25,000 won and interest rate of 25,0716,067,2616,27

B. Determination

(1) Relevant provisions

(A) The Trust Business Act (amended by Act No. 5502 of January 13, 1998; hereinafter the same shall apply)

Article 11 (Compensation for Loss or Satisfaction of Profit) A trust company may, under the conditions as prescribed by the Minister of Finance and Economy, make a contract to compensate for or satisfy the principal in case where only a money trust for which the operating method is not specified, may cause loss to the principal, or where it fails to obtain the predetermined minimum profit.

Article 17-3 (Matters to be Entered in Beneficiary Certificates) 5: When a contract for compensating for losses or providing profit satisfaction under Article 11 has been made, they shall be entered in the Beneficiary Certificates, and the representative of the trust company shall affix his signature

Article 43 (Penalty against Officers, Liquidators, or Other Officers: Where a contract for preservation or satisfaction of the trust has been made in violation of the provisions of Article 11 or an order issued under the same Article, the directors, auditors, managers, agents (where an agent representative is a juristic person, its members executing the duties, directors, or other representatives), or liquidators shall be punished by a fine for negligence not exceeding one million won.

(B) Enforcement Decree of the Trust Business Act (amended by April 1, 1998; hereinafter the same shall apply)

Article 11 (Ratio of Profit) In case where a trust company enters into a contract meeting an amount determined in advance pursuant to Article 11 of the Act, the ratio of profit shall not exceed the ratio determined by Ordinance of the Prime Minister.

Article 6 (Matters to be Stated in Trust Contract or Trust Deed) 11: The rate of preservation or satisfaction and other matters concerning such rate shall be stated in the Trust Contract or Trust Deed in the case of preservation or satisfaction contract pursuant to the provisions of Article 11 of the Act, and the truster and the representative of trust company shall be stated in the Trust Contract, and the name and seal of the representative of trust company in the Trust Deed.

(C) Enforcement Rule of the Trust Business Act (amended by May 20, 1998; hereinafter the same shall apply)

Article 1 (Ratio of Benefit) In the case of a contract which satisfies the interests of a trust company pursuant to the provisions of Article 11 of the Enforcement Decree of the Trust Business Act, the ratio of its profit shall be 1.6/100 per annum for a period of not less than one year and not less than 1.6/100 per annum;

Article 5 (Special Reserve Money for Joint-Operation Money Trust) (1) In the case of joint operating money trust under a contract for compensating for losses or satisfying profits pursuant to the provisions of Article 11 of the Act, a trust company shall not use the amount accumulated for any purpose other than compensating for losses or satisfying profits, when it sets aside special reserve money under the terms and conditions of trust. (2) The special reserve money referred to in paragraph (1) shall be accumulated within the limit of 5/100 of the proceeds at each time of calculating the trust proceeds, but the total amount shall not exceed 3/100 of the proceeds entrusted. (3) When it is unnecessary to keep the special reserve money referred to in paragraph (1) due to the redemption of the trust principal, the trust company may acquire it as the trust remuneration with the approval of

(D) Outline of trust business operation (before being replaced by the regulations on the supervision of trust business as of April 1, 1998)

Article 8 (Legal Nature, etc. of Trust other than Specified Money Trust and Money Trust): No trust, other than specified money trust and money trust, may make a contract for preservation of principal and satisfaction of profit.

Article 15-2 (Duty to Maintain Sound Financial Transaction Order): A trust company shall comply with the prohibition of guaranteeing an earning rate in advance for a trust product that is unable to conclude a profit satisfaction contract to maintain sound financial transaction order.

(2) Whether an agreement on guaranteeing return on investment under each of the instant trust contracts is valid

(A) As seen earlier, each of the instant trust contracts refers to “acquisition or purchase of securities authorized by the Minister of Finance and Economy” (in the case of the first trust), or “acquisition or purchase of securities authorized by the Minister of Finance and Economy” or “acquisition or purchase of State, public bonds, and corporate bonds” (in the case of the second trust of this case, in the case of the second trust of this case, in the case of whether they are designated as one subject to the management of trust property, and whether they are designated as two), and the trust property is designated as one subject to the management of the trust property (Article 4 of each trust contract of this case). Since each of the instant trust contracts is designated as a specified money trust contract (Article 4 of each trust contract of this case merely because the trust fees are not specified in each of the instant trust contracts, it is difficult to view each of the instant trust contracts as non-specified money trust contracts of this case). In light of the legislative intent purpose of the Trust Business Act, the provisions of Article 11 of the Enforcement Decree of the Trust Business Act, Article 15-2 of the Trust Business Act prohibit an earning agreement on specific money and return agreements with the trust agreement.

(B) In addition, each trust contract of this case provides that "profit shall accrue to the beneficiary, in whole, (Article 7), the defendant, the trustee, shall receive trust fees (Article 10), and losses from trust property shall also accrue to the truster (Article 11 of the contract). Each of the trust contracts of this case shall be a so-called performance-based product that may cause losses to the principal (the plaintiff's assertion that each of the trust contracts of this case shall be the same as a deposit contract or non-specified money trust contract in substance). Accordingly, the trust contract of this case shall not be accepted in that it takes the form of indirect investment investment trust operated by the truster, which is similar to the securities investment trust company, in that a specific money trust shall be purchased from the truster, and the trustee shall be designated as the truster, the trustee, the method of operating a specific money trust, and that the beneficiary shall bear all risks arising from the management method and operation of the trust property, and it shall not be accepted if it is contrary to the purpose of each of the trust contracts of this case, and it shall be more effective to ensure that the beneficiary will incur losses from each of the trust contract of this case.

3. Determination on the first preliminary claim

A. Whether the non-performance of liability under the first trust contract of this case is established

(1) The plaintiff's assertion

The plaintiff asserts that the plaintiff was liable for damages equivalent to KRW 1,930,87,581, which is the amount of the company incorporated into the company's first trust property of East Heavy Industries, as a result of the plaintiff's incorporation into the trust property of treatment Heavy Industries, which is not "other securities authorized by the Minister of Finance and Economy" under the trust agreement, without consulting with the plaintiff or notifying the plaintiff on November 1, 1998, after the company became the object of the company's corporate improvement work, and eventually, the company's corporate bonds could not be repaid due to the deterioration of the financial condition of the company's company and the company division, etc. (the plaintiff has a duty to accurately determine the credit rating of the company to be invested and prevent damage to the plaintiff, who is the trustee, even though the trustee, has a duty to choose the trust property of this case as the trust property of this case, which is not suitable for the trust property of this case to be redeemed as the object of the company's improvement project of August 31, 1998.

(2) Determination

(A) As seen earlier, it is against the agreement between the original and the Defendant as stipulated in the first trust contract to incorporate the Daewoo Heavy Industries Corporate Bonds, which are not subject to management, into the first trust property even though the subject of management under the first trust contract is “acquisition or purchase of securities authorized by the Minister of Finance and Economy,” and thus, the Defendant breached its duty as the trustee under the first trust contract.

(B) As to this, the Defendant’s incorporation of the instant trust property into the instant trust property into the instant trust property was based on the audit report for the 46 period (from January 1, 1997 to December 31, 1997) of the instant case’s CP construction. The Defendant asserted that, in its audit report, the Plaintiff’s transfer of the instant trust property to the instant trust property was not likely to bring about a serious loss to the Plaintiff’s investment trust property to KRW 100,00,00,000, and that it was not likely that the Plaintiff’s transfer of the instant trust property to the instant trust property to the instant trust property to KRW 10,00,000,000, and that it was not likely that the Plaintiff’s transfer of the instant trust property to the instant trust property to KRW 14,000,000,000, and that it was not likely that the instant trust property would have been subject to the Plaintiff’s investment risk improvement due to the Defendant’s investment trust property’s 195,05, supra.

However, according to the evidence adopted earlier, the Plaintiff and the Plaintiff did not have any evidence to acknowledge that the Defendant agreed to incorporate Daewoo Heavy Industries Co., Ltd. into the instant trust property instead of the Aircraft Construction CP, and the Dong Construction received each co-financing of KRW 220 billion from the principal creditor banks in January 1998, and around April 6, 1998, and again requested creditor financial institutions to provide a co-financing of KRW 140 billion from May 6, 1998. Meanwhile, on May 21, 1998, creditor financial institutions, including the Defendant, established a consultative body and set up a management body with respect to Dong Construction in order to prepare a joint measure against additional funding of Dong Construction 1, 1998. From May 26, 1998, it was considerably difficult to view that the Defendant’s credit assessment at the time of such credit assessment as the Seoul Building Co., Ltd.’s credit assessment at the time of 1, 198.

In addition, as seen earlier, even if there was a need to replace the East Asia Construction CP incorporated into the trust property of this case in order to prevent Plaintiff’s damage, the trustee, should have been given adequate and adequate consultation, such as seeking consent by confirming the intent of the Plaintiff, who is the beneficiary, or notified the Plaintiff of the fact so that the Plaintiff may make another choice. Even if it was urgent to such an extent that it would not undergo consultation with the Plaintiff, the trustee should have taken measures such as including the transfer of other assets within the scope of management of the trust property stipulated in the first trust contract of this case (see Article 8-2(2) of the Trust Business Act, which applies to the first trust contract of this case), at least when it is necessary to take measures, such as notifying the Plaintiff of the fact in advance and allowing the Plaintiff to make another choice (see Article 20 of the Trust Business Act, e.g., Article 14 of the Trust Business Act).

In addition, Article 10 of the Trust Contract provides that "other matters not prescribed in this contract shall be governed by the Trust Act and the Trust Business Act." Article 28 of the Trust Act, which is in force at the time, provides that "the trustee shall manage or dispose of the trust property with the care of a good manager according to the principal place of the trust." Article 38 of the Trust Act provides that "where the trustee fails to properly manage the trust property, or where he disposes of the trust property in violation of the principal place of the trust, he/she may claim compensation or reinstatement against the trustee, or where he/she disposes of the trust property, he/she may claim compensation or restitution of the trust property against the trustee." Article 17 of the Trust Contract provides that the trustee has a duty of care to manage the trust property so as not to incur any loss to the trust property (Article 17 of the Trust Contract of this case also provides that the trustee shall exercise the fiduciary care duty in advance to minimize the Plaintiff's loss, even if it was necessary to redeem or sell the construction bonds from the trust property of this case, he/she may not be able from among the trust property of this case.

Therefore, it is difficult to accept the Defendant’s argument that there was an agreement to incorporate the company bonds of the Daewoo Heavy Industries or its incorporation does not constitute nonperformance as stipulated in the proviso of Article 4 of the Trust Contract of this case. Ultimately, the Defendant is liable to compensate the Plaintiff for damages caused by a series of erroneous acts, such as the purchase of the same Asia Construction CP and the exchange of the same Asia Construction CP and the return of the company bonds.

(C) On this point, the Defendant asserted to the effect that there was no damage to the Plaintiff on account of the inclusion of the company bonds of the Daewoo Heavy Industries in the trust property of this case as the trust property of this case, compared to the continued operation of the company construction CP as the trust property of this case. However, as seen earlier, since the incorporation of the company bonds of the Daewoo Heavy Industries into the trust property of this case is deemed to constitute the Defendant’s nonperformance of obligation which clearly violated the trust contract of this case, as well as the Defendant’s incorporation of the company bonds of this case into the trust property of this case into the trust property of this case as the trustee’s violation of the fiduciary duty, it is difficult to accept without any need to examine the remaining part of the Defendant’s argument that there was no damage to the Plaintiff, since the collection rate of the company bonds of the East Heavy Heavy Industries, compared with the collection rate of the company bonds of the East Heavy Heavy Industries, were higher than the collection rate of the company bonds of this case. However, since the company’s wrong purchase of the construction CP in this case, but exchanged industry equivalent to the sale price of the company bonds of this case was returned.

(D) In addition, the defendant did not raise any objection even though the plaintiff was notified by the defendant on August 14, 199 that the company was incorporated into the company bonds of the Daewoo Heavy Industries, and instead, received interest on five occasions from December 2, 2002 on five occasions, the defendant asserts that since it approved the incorporation of the company bonds of the Daewoo Heavy Industries into the trust property of this case as the trust property of this case, the plaintiff cannot enforce the defendant's liability for default.

According to the evidence adopted earlier, it is difficult for the Plaintiff to have received 19.1.3 of this case’s trust interest rate of KRW 2,09,157 and KRW 2,74,56 of this case’s trust interest rate of KRW 176,035,201 (the total interest rate of KRW 50,02,217, 199. 63, 63, 492, 199. 6. 6. 63, 199, 192, 63, 492, 69, 199. 6. 6. 6. 19, 197, 197, 197, 209, 196. 9, 197, 209, 196. 1. 7. 2, 209, 196, 294, 197, 2016. 7. 7

(E) Ultimately, the Defendant’s incorporation of the instant trust property into the instant trust property of Dong Construction CP and Daewoo Heavy Industries Company’s corporate bonds constitutes nonperformance of the duty of care as a trustee under the instant trust contract.

B. Whether the non-performance of liability under the second trust contract of this case is established

(1) The parties’ assertion

원고는, 이 사건 제2신탁계약에서 신탁재산의 운용대상으로 ‘기타 재정경제원장관의 인가를 받은 유가증권의 인수 또는 매입’으로 명시적으로 약정하였음에도 불구하고 피고가 그에 위반하여 주식회사 대우 회사채를 제2신탁재산으로 편입하였고, 결국 주식회사 대우의 재정상태악화와 그에 따른 회사분할 등으로 인하여 그 회사채를 상환받지 못하게 된 결과 원고로 하여금 주식회사 대우의 회사채 편입액 1,494,922,825원 상당의 손해를 입게 한 것은 이 사건 제2신탁계약을 바로 위반한 것이거나 이 사건 제2신탁계약에 기한 선관주의의무 등을 위반한 채무불이행에 해당한다고 주장하고 있고, 이에 대하여 피고는 (가) 이 사건 제2신탁계약을 체결하기 직전인 1996. 12. 26. 앞서 본 7가지의 신탁재산 운용방법 중 하나의 방법을 지정하여 신탁자금을 운용하도록 되어 있던 신탁업무운용요강 제8조의 2 제2항이 그 신탁재산 운용방법 중 2 이내의 방법을 지정하는 것으로 개정되었고, 그에 따라 원·피고가 합의하여 이 사건 제2신탁재산의 운용방법으로 ‘국·공채, 회사채의 인수 또는 매입’ 및 ‘기타 재정경제원장관의 인가를 받은 유가증권의 인수 또는 매입’으로 2가지를 지정하였던 것인데, 다만 ‘국·공채, 회사채의 인수 또는 매입’을 표시하는 고무인이 없어 신탁계약서 제4조의 공란에는 기존에 사용하던 ‘기타 재정경제원장관의 인가를 받은 유가증권의 인수 또는 매입’을 표시하는 고무인만 날인하되, 신탁계약서의 별첨에는 위 두 부분 모두에 체크(∨표시)를 하였던 것이므로 이 사건 제2신탁재산으로 주식회사 대우 회사채를 편입한 것은 원·피고 사이의 합의에 의한 것이고, (나) 그렇지 않다고 하더라도 원고가 1999. 8. 14. 피고로부터 주식회사 대우의 회사채 편입사실을 통보받고도 아무런 이의를 제기하지 않고 오히려 2001. 8. 10. 및 2002. 12. 26. 각 이자를 수령하였으므로 주식회사 대우 회사채의 이 사건 제2신탁재산으로의 편입을 승인한 것이므로 피고는 채무불이행책임을 부담하지 않는다고 주장한다.

(2) Determination

이 사건 제2신탁계약서 제4항의 신탁금 운용대상을 기재하는 공란에 고무인으로 ‘기타 재정경제원장관의 인가를 받은 유가증권의 인수 또는 매입’만 날인되어 있는 사실(피고가 보관하고 있는 이 사건 제2신탁계약서 원본상에는 제4조에 그 고무인 밑에 볼펜으로 ‘국·공채, 회사채의 인수 또는 매입’이라고 기재되어 있으나 그 부분은 사후에 기재된 것으로 보인다), 당시 개정된 신탁업무운용요강 제8조의 2 제1항에는 “계약시 신탁자금의 운용방법을 계약서에 명기”하도록 규정하고 있었던 사실은 앞서 본 바와 같으므로 다른 특별한 사정이 없는 한 이 사건 제2신탁계약의 운용대상은 그 문언에 따라 기타 재정경제원장관의 인가를 받은 유가증권의 인수 또는 매입으로 한정되었다고 해석하여야 할 것이나, 한편 이 사건 제2신탁계약 체결일 직전인 1996. 12. 26. 신탁업무운용요강 제8조의 2 제2항이 신탁재산 운용방법 중 2 이내의 방법을 지정하는 것으로 개정되었고, 이 사건 제2신탁계약서의 별첨에는 ‘기타 재정경제원 장관의 인가를 받은 유가증권의 인수 또는 매입’뿐만 아니라 ‘국·공채, 회사채의 인수 또는 매입’에도 체크(∨표시)가 되어 있었으며(원·피고는 이 사건 각 신탁계약에서 그 각 계약서 원본을 2통을 작성하여 원·피고가 각각 1통씩 보관하도록 약정하였는데, 앞서 본 바와 같이 원고가 보관하고 있는 이 사건 제2신탁계약서 원본의 별첨란에도 ‘국·공채, 회사채의 인수 또는 매입’에 그와 같이 체크표시가 되어 있다), 이 사건 제2신탁계약 체결일 당일 이 사건 제2신탁계약에 의한 운용대상으로 바로 주식회사 대우의 회사채가 편입되었던 사실 역시 앞서 본 바와 같으며, 이 사건 제2신탁계약서는 계약사항을 기재한 본문과 그에 따른 특정사항을 별지 또는 별개의 문서에 작성하여 그 본문에 그 별지를 첨부하는 형태가 아니라 전체가 1장으로 된 용지를 3부분으로 나누어서 그 왼쪽과 가운데 면은 신탁금의 운용대상을 고무인으로 날인한 부분을 포함한 계약내용이 기재되어 있고, 그 오른쪽 면은 그 신탁금의 운용대상을 구체화한 별첨으로 그 운용대상을 체크(∨)하도록 구성되어 있는 점, 이 사건 제2신탁계약은 그와 같은 신탁업무운용요강이 개정된 1996. 12. 26.로부터 10여 일이 지난 후에 체결된 점, 신탁재산 운용방법을 2가지로 지정할 수 있도록 신탁업무요강이 개정된 것은 신탁회사 또는 신탁업을 겸하는 금융기관의 건의에 의한 것이었고 그러한 신탁재산 운용방법의 확대는 궁극적으로 수탁자의 이익을 위한 것이라고 할 것인 점 등 이 사건 제2신탁계약 체결 전후의 상황, 이 사건 제2신탁계약서(별첨 포함)의 구성이나 그 표시 내용 등 이 사건 변론에 나타난 제반 사정에 비추어 볼 때 이 사건 제2신탁계약의 운용방법은 ‘기타 재정경제원장관의 인가를 받은 유가증권의 인수 또는 매입’과 ‘국·공채, 회사채의 인수 또는 매입’의 2가지로 지정되었다고 봄이 상당하다.

Therefore, the incorporation of the Defendant into the trust property of this case into the trust property of this case is subject to the contract (in addition, the management status of treatment corporation or its credit assessment was good at the time of incorporation) and there is no evidence to prove that the incorporation of treatment corporation into the trust property of this case of this case of the trust property of this case of this case of the incorporation into the trust property of this case of the trust property of this case of the trust property of this case of the second trust property of this case of this part of the Plaintiff's claim for non-performance of obligation under the trust contract of this case of this case of this case of this case of this case of this part is not acceptable (as such, the incorporation of treatment corporation's corporate bonds into the trust

4. Scope of damages.

Property damage due to nonperformance is the difference between the property condition that would have existed without the act of default and the property condition that would have occurred after the act of default. Therefore, in principle, the damages suffered by the plaintiff due to the defendant's default under the first trust agreement of this case shall be the amount calculated by deducting, from the actual value (including the actual value of the corporate bonds of treatment-based machinery established after the division of the treatment-based industry) of the company bonds of treatment-based industry (including the value of the corporate bonds of treatment-based machinery established after the division of the treatment-based industry) currently belonging to the trust property of this case at KRW 1,930,87,581 in the account book in which the defendant included the company bonds of treatment-based industry of this case as the trust property of this case.

Therefore, the Plaintiff’s loss amount is from KRW 1,930,87,581 to KRW 176,035,201, which was calculated by deducting the total amount of KRW 230,980,105 (Provided, That with respect to an industrial company bond issued on April 12, 2001, the total amount of KRW 28,683,714 from KRW 1,96,00 to KRW 176,035,201, which was calculated by deducting the total amount of KRW 176,00,00, KRW 230,980,000 from the total of KRW 1,930,87,581 from the total of KRW 1,00 to the day following the expiration date of the first trust contract, KRW 30,00,000, KRW 31,000, KRW 47,297, KRW 294,297, and KRW 47,297,294,294,7,2,247, etc.

Ultimately, the defendant, as the plaintiff's damages 1,217,439,053 won due to the non-performance under the trust contract of this case and its damages 1,217,439,053 won due to the non-performance of the defendant's obligation after November 25, 1998 (the plaintiff was notified from the defendant in the complaint of this case on November 25, 1998 as the date when the non-performance of obligation was incorporated into the company bonds of the Daewoo Heavy Heavy Heavy Industries. After the defendant made a corrected statement on November 6, 1998, the date when the company incorporation into the company bonds of the Daewoo Heavy Heavy Industries was corrected as of November 6, 1998, but the delay damages were not changed accordingly) under the Commercial Act by November 24, 2004, the date when the judgment of this case was rendered (it is reasonable to dispute about the existence and scope of the defendant's obligation to perform until it is repaid).

5. Determination on the second preliminary claim

A. The plaintiff's assertion

The plaintiff asserts that when concluding each of the trust contracts of this case, even if the defendant does not fully or partially bear the defendant's responsibility for default, the two chiefs of business of the defendant's business in each of the trust contracts of this case caused the plaintiff to conclude each of the trust contracts of this case by attaching an agreement on guaranteeing an earning rate as if they had no intent to guarantee the plaintiff's return rate as stated in the agreement on guaranteeing an earning rate, etc., and the defendant is liable to compensate the plaintiff for damages caused by the tort as an employer of the two chiefs of business, the defendant is aware that the agreement on guaranteeing an earning rate is null and void, and that the agreement on guaranteeing an earning rate as such agreement on guaranteeing an earning rate is made arbitrarily without being delegated by the defendant. Thus, even if the tort is constituted, it is argued that the statute of limitations has expired.

B. Determination (in relation to the first trust contract of this case, limited to the part not recognized above out of the claim for damages due to nonperformance)

However, even if the plaintiff's assertion constitutes a tort, if the victim does not exercise his right to claim compensation for a tort for damages and for three years from the date on which the victim became aware of the damages and the perpetrator (Article 766 (1) of the Civil Act). According to the evidence adopted earlier, the plaintiff was notified by the defendant on August 14, 199 that he was subject to a corporate bonds of treatment as to the second trust property of this case, and on October 22, 1999 and November 15, 1999, the plaintiff expressed his intention to pursue civil and criminal liability if he was not resolved smoothly while seeking the payment of treatment bonds to the defendant on or around November 15, 1999, and at that time, it is recognized that the group including the treatment company had already been faced with the insolvency crisis. Thus, the plaintiff's claim for compensation for a tort has not been accepted at least since it is clear that the plaintiff had actually known the defendant's tort or the remainder of damages, and the plaintiff's claim for compensation for a short-term period of 2361.

6. Conclusion

Therefore, the plaintiff's primary claim among the claims of this case is dismissed as it is without merit, and the primary claim is justified within the scope of the above recognition, and the remaining primary claim and the second preliminary claim of this case are dismissed as it is without merit (However, the part related to the trust No. 1 is not recognized as non-performance liability). It is so decided as per Disposition.

Judges Kim Jong-sung (Presiding Judge)