[1] In the event that an asset management company issues an operating plan containing more specific content than that of the trust agreement to investors in an investment trust, the standard for determining whether it is binding as an individual agreement

[2] In a case where an asset management company under the former Indirect Investment Asset Management Business Act has an effect on investors' investment decisions by providing investors with a management plan that contains a statement that may mislead the investors into misunderstanding of important matters, whether the asset management company may be deemed to have fulfilled its duty to protect investors

[1] Article 105 of the Civil Act / [2] Articles 4, 19, and 56 (1) of the former Indirect Investment Asset Management Business Act (repealed by Article 2 of the Addenda to the Financial Investment Services and Capital Markets Act, Act No. 8635, Aug. 3, 2007)

[1] Supreme Court Decision 2004Da53197 Decided September 6, 2007 (Gong2007Ha, 1521) / [2] Supreme Court Decision 2010Da76368 Decided July 28, 201 (Gong201Ha, 1757)

The Public Official Pension Corporation and one other (Attorney Go Young-deok, Counsel for the defendant-appellant)

Jinjin Asset Management Co., Ltd. (Law Firm LLC, Attorneys Shin Sung-si et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2009Na83942, 83959 decided December 23, 2010

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the defendant's grounds of appeal Nos. 1 through 4

A. In the event that an asset management company delivers a management plan, directly or through a selling company, which contains more specific contents than the terms and conditions of the trust agreement, whether such contents are binding as an individual agreement should be determined by comprehensively taking into account the purpose, name, form, and content of the management plan, the motive and circumstance of the delivery of such documents, and the party’s genuine intent (see Supreme Court Decision 2004Da53197, Sept. 6, 2007).

According to the reasoning of the judgment below, the court below determined as follows: (a) the trust agreement of the fund of this case does not specify the fund as "real estate related loan," but only general matters concerning the management method are prescribed as "real estate related loan," while the management plan of this case specifies the investment object of the fund of this case as "real estate related loan; (b) the time to distribute profits; and (c) the method to collect the principal and interest of the fund; and (d) the defendant is "private fund," which explains and invests directly in contact only small number of institutional investors; and (e) the fund of this case is "private fund," which is explained and invested by the defendant, directly to the public official pension corporation of this case, the defendant issued the management plan of this case to the National Federation of Special Post Offices through Korea Investment Securities Co., Ltd., Ltd., which is the distributor, and the plaintiffs were pursuing stable increase for the establishment purpose of the fund; and (e) the plaintiffs did not invest in the fund where there is a relatively high risk of principal loss in the fund management plan; and (e) the details of the fund of the fund of this case.

However, we cannot accept the above decision of the court below for the following reasons.

According to the reasoning of the judgment below and the evidence duly admitted by the court below, the management plan of this case is prepared by the defendant, an asset management company, prior to the creation of the fund of this case, for the purpose of explaining the summary of real estate investment trust, the plan of loans, the inspection of risks, the current status of sales prices and sales prices of surrounding apartment units, the current status of sales prices and sales prices of such units, the schedule of sales in lots, the income of sales in lots, the schedule of sales in lots, the plan for collection of principal and interest on investment, the plan for securing risks and stability. The management plan of this case is not in the form of a trade contract but in the form of a mer used mainly in the financial product guide.

Examining these facts in light of the legal principles as seen earlier, it is difficult to readily conclude that the content of the instant operational plan was established as an individual agreement between the Plaintiffs and the Defendant solely on the following circumstances cited by the lower court: (a) certain content of the instant operational plan is more specific compared to the terms and conditions of trust; (b) the fund was created through prior contact with investors, such as the Plaintiffs, as private equity investment trust; or (c) or the Plaintiffs trusted on the plans to recall principal and interest and to secure stability provided in the instant operational plan. In so doing, the lower court erred by misapprehending the legal doctrine on the legal nature of the instant operational plan.

B. Meanwhile, an asset management company under the former Indirect Investment Asset Management Business Act (amended by Act No. 8635 of Aug. 3, 2007 and enforced as of Feb. 4, 2009, Article 2 of the Addenda to the Financial Investment Services and Capital Markets Act) bears the duty of care to protect investors so that investors can make reasonable investment decisions based on information by providing correct information on the profit structure and risk factors of investment trust to a distributor or an investor. Thus, where an asset management company prepares and delivers and delivers an investment trust management plan, it included an indication that may cause misunderstanding of important matters to investors or a balance of profit and risk of investment trust when it affects investors' investment decision, and if it affects investors' investment decision, the asset management company cannot be deemed to have fulfilled its duty to protect investors at the stage of investment recommendation (see, e.g., Supreme Court Decision 2010Da76368, Jul. 28, 2011).

원심판결 이유와 원심이 적법하게 채택한 증거에 의하면, 이 사건 운용계획서의 ‘리스크 요인 및 안전성 확보방안’항에는 “시공사 부도 등의 사유 발생 시 시공권 및 이에 관한 일체의 권리를 포기하도록 하고, 대체시공사 선정 후 공사를 진행할 수 있도록 약정함. 일반분양분은 대한주택보증의 주택분양보증, 조합분은 건설공제조합의 공사계약보증에 가입되어 있어 공사준공 리스크가 낮음”, “펀드로 투자된 대여원리금은 사업시행자[채무자: 우정건설(주)]의 일반적인 기업신용도와 관계없이 본 사업의 분양대금으로 상환하며…”, “펀드 운용기간 중 대상사업에서 발생하는 기분양분 수입금 약 133억 원 및 미분양 매출액 221억 원 등 총 354억 원의 분양수입금이 당 대출원리금의 상환재원으로 확보되어 원리금 회수 Risk 낮음”이라고 기재되어 있는 사실, 이 사건 사업에 의해 신축되는 아파트는 지하 1층, 지상 19층의 아파트 3개동, 총 212세대 규모로서, 그 준공예정일은 2008. 5.경이었고, 이 사건 펀드가 설정된 2006. 2.경 분양률은 57%, 공정률은 7.31% 정도였다가, 2007. 12.경 분양률이 100%, 공정률이 74.97% 정도에 이르렀으나, 2008. 2. 1. 공동시행사 겸 시공사인 우정건설 주식회사(이하 ‘우정건설’이라 한다)의 부도가 발생하여 공사가 중단된 사실, 우정건설의 부도발생 이후 이 사건 아파트는 보증시공사인 대한주택보증 주식회사와 건설공제조합이 보증시공을 한 사실, 그 후 이 사건 아파트의 분양대금은 피고의 분양대금수납계좌가 아닌 시공보증회사의 자금관리계좌로 입금되어 더 이상 피고가 분양대금을 관리할 수 없게 되었고, 그 결과 이 사건 분양대금을 실질적 담보로 삼으려 하였던 이 사건 펀드 투자원리금 회수계획 역시 불가능하게 된 사실, 또한 이 사건 운용계획서에는 “본 펀드 설정 이후 사업의 전 과정에서 발생되는 수입과 지출은 피고가 관리·통제하는 자금관리계좌를 통해 이루어지도록 되어 있어 신용리스크는 낮음”, “자금관리계좌에 대한 예금 질권 설정으로 분양수입금에 대한 제3자의 권리침해를 방지함”, “원리금손실 리스크를 최소화하기 위해 일반분양분의 잔여 중도금 및 잔금납입시점에 원금유보용으로 일정금액(2차~6차 중도금 납부 시 각 9.5억 원, 잔금납부 시 52.5억 원)을 유보하도록 구조화함”, “기분양되어 확정된 일반분양분 중도금 수입일정에 따라 일정액을 에스크로계좌에 대여원금상환용으로 유보하여 공사비 및 기타 사업경비에 우선하여 펀드원리금 회수”라고 기재되어 있는 사실, 그런데 피고는 우정건설에 자금관리계좌로서 운영계좌, 유보계좌 등 복수의 계좌를 개설하여 보유할 수 있고, 운영계좌에서 유보계좌로 자금을 이체하여 수익활동을 할 수 있도록 허용하였으며, 운영계좌에만 질권을 설정하고 유보계좌에는 질권을 설정하지 아니한 사실, 그 결과 이 사건 펀드 설정 이후 우정건설의 부도가 발생한 2008. 2. 1.경까지의 분양수입금인 20,720,000,000원 중 대출원금 상환을 위하여 유보하기로 되어 있던 합계 47억 5,000만 원이 이 사건 운용계획서의 기재와 같이 각 약정기일에 운영계좌에 일단 유보되었으나, 이후 우정건설은 이 사건 운영계좌에서 유보계좌로 4,994,649,457원을 이체하여 위 돈으로 피고가 설정한 또 다른 부동산펀드인 서울드림모아 사모부동산투자신탁 제18호 펀드(이하 ‘18호 펀드’라 한다)의 수익증권 4,936,888,889좌를 매수한 사실, 우정건설의 부도 발생일 당시 이 사건 운영계좌에는 유보가 예정된 47억 5,000만 원에 크게 미달하는 253,112,402원만이 남아 있었고, 이 사건 유보계좌에는 제18호 펀드의 수익증권 4,536,888,889좌가 남아 있다가 그 중 1,417,777,778좌는 2008. 2. 14. 중도환매되어 그 환매대금 1,451,018,690원이 운영계좌에 재입금된 뒤 그 중 1,195,264,390원이 원고들에게 상환되었지만, 나머지 3,119,111,111좌는 유보계좌에 그대로 남아 있다가 2008. 3. 21. 우정건설에 대한 회생절차개시결정으로 회생회사의 일반재산에 편입된 사실, 이로써 운영계좌에 남아 있었거나 재입금되어 이 사건 대출원금의 상환에 사용된 금액은 합계 1,448,376,792원(253,112,402원 + 1,195,264,390원)으로서 당초 계획된 47억 5,000만 원에 미치지 못하는 사실을 알 수 있다.

We examine these facts in light of the legal principles as seen earlier.

First of all, when Postal Construction suspends the construction due to the default of payment before receiving all proceeds of sale, even if the construction continues by the substitute construction, the sales revenue is not deposited in the funds management account managed by the defendant, and the substitute construction is not obligated to take over the loan obligations of Postal Construction. Thus, the fund of this case is likely to incur principal loss according to the general corporate credit risk of Postal Construction, and it actually realizes such risk, and there was losses equivalent to the investment principal that cannot be recovered to the plaintiffs. The defendant used in the management plan of this case the expression that the loan of this case is separate from the general corporate credit risk of Postal Construction and is guaranteed by the general corporate credit risk of Postal Construction and the repayment of the principal loss is not likely to cause any misunderstanding of the principal loss due to the guarantee of the proceeds of sale, regardless of the default of Postal Construction, and the trust that the repayment of the principal and interest of this case is made in preference to the construction cost and other business expenses. Thus, the fund of this case cannot be fully obliged to provide the correct information about the funds of this case.

In addition, since the fund of this case does not guarantee the principal and interest of this case, which is subject to its management, and is repaid with proceeds from the sale of the business of this case, as its main financial resources, the fund of this case is not secured by the debtor, but with proceeds from the sale of this case, the defendant must exercise due care to ensure the smooth repayment of the principal and interest of this case. However, unlike the fund management standards stated in the management plan of this case that the defendant voluntarily presented to the plaintiffs with respect to the reservation for the repayment of the leased principal and interest, the act of allowing postal construction to open and hold a reserved account for which a pledge is not established, and further allowing the funds to be reserved to the operating account to be used for profit-making activities by transferring it to the reserved account for repayment of the leased principal to the funds reserved for the repayment of the loan principal, is in violation of the asset management company's duty of care. Such error is combined with the violation of the investor protection duty at the above stage of investment recommendation.

Although the reasoning of the lower court is somewhat insufficient, it appears that the Defendant did not perform the duty of protecting investors and the duty of care at the stage of investment recommendation, thereby causing damage to the Plaintiffs, even though the instant operational plan does not constitute an individual agreement. The lower court’s determination is acceptable.

C. Ultimately, the court below erred by misapprehending the legal principles as to the legal nature of the operation plan as seen earlier, but it is justifiable in its conclusion that the Defendant is liable for damages. In so doing, contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal principles

The Defendant’s ground of appeal on this part is without merit.

2. As to the defendant's sixth ground of appeal

In calculating the amount of damages suffered by the plaintiffs, the court below deducted only the amount collected from the management account managed by the defendant from each of the investment principal of the plaintiffs.

However, according to the records, the plaintiffs have each part of the beneficiary certificates of this case at the time of the conclusion of the hearing by the court below. However, unless there is any evidence to deem that the plaintiffs' losses have no remaining value of the beneficiary certificates of this case at the time of realization, the court below shall deliberate and determine the remaining value appraised and reflect them in the calculation of damages.

The court below erred in the misapprehension of legal principles as to the scope of damages, which affected the conclusion of the judgment, and the defendant's ground of appeal pointing this out is justified.

3. As to the Defendant’s fifth ground of appeal

The lower court, on the premise that the claim for damages due to the violation of the duty to manage funds in the fund management stage and the claim for damages due to the violation of the duty to protect investors in the investment recommendation stage are separate claims for damages, did not offset the former by negligence, and calculated the amount of damages that the Defendant is liable

However, each of the above claims for damages is not a separate claim for damages, but a single claim for damages where negligence competes with a single harmful act. Therefore, in offsetting negligence, the plaintiffs' negligence should be evaluated as a whole as to a single tort.

On the contrary, the court below erred by misapprehending the legal principles as to the method of offsetting negligence, thereby adversely affecting the conclusion of the judgment, and the defendant's ground of appeal on this part is with merit.

Meanwhile, as long as the judgment of the court below is reversed without examining the remaining grounds of appeal by both the plaintiff and the defendant as to comparative negligence ratio, the part against the defendant as well as the part against the plaintiff should be reversed.

4. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)