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

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

April 6, 2017

1. The defendant shall pay to the plaintiff 42,695,00 won with 5% interest per annum from August 12, 2016 to May 11, 2017, and 15% interest per annum from the next day to the day of complete payment.

2. The plaintiff's remaining claims are dismissed.

3. Of the litigation costs, 85% is assessed against the Plaintiff, and the remainder is assessed against the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 234,020,00 won with 5% interest per annum from April 29, 2015 to the service date of a copy of the complaint of this case, and 15% interest per annum from the next day to the day of complete payment.

1. Basic facts

A. Inheritance relationship of the Deceased

The deceased non-party 3 (hereinafter referred to as “the deceased”) died on February 6, 2012, and at the time of death, there was the deceased’s heir, who was the deceased’s spouse, the Plaintiff, the Plaintiff, the non-party 1, and the non-party 2.

B. Transactional relationship between the deceased and the defendant

1) Before the deceased’s death, the deceased opened a savings account (Account No. 1 omitted) through the Defendant, and on February 6, 2012, the balance of the said deposit account was KRW 514,112 (hereinafter “instant deposit claim”) at the time of the deceased’s death.

2) The Deceased purchased the beneficiary certificates (hereinafter referred to as “beneficiary certificates 1”) of the “JPS Infrastructure Securities Investment Trust” (hereinafter referred to as “Investment Trust 1”) established by the Korea Asset Management Co., Ltd., via the Defendant, the selling company (Account 2 omitted) (Account Number 1 omitted). On February 6, 2012, the Deceased’s death was 763,200,317 won at the base price of the first beneficiary certificates owned by the Deceased as of February 6, 2012.

The first investment trust was completely terminated in accordance with the proviso of Article 192(1) of the Financial Investment Services and Capital Markets Act (hereinafter “Capital Markets Act”) and Article 223(3) and 4 of the Enforcement Decree of the said Act on April 2, 2015. Accordingly, KRW 955,158,778 upon the termination of the investment trust was deposited into the account in the deceased’s name on the same day.

3) On October 29, 2007, the Deceased purchased the class C5 beneficiary certificates 2,065,290,965 unit (hereinafter referred to as “second beneficiary certificates”) of the deldele Investment Trust or Securities Investment Trust (hereinafter referred to as the “Secondary Investment Trust”) (hereinafter referred to as the “Secondary beneficiary certificates”) established by the deldele Asset Management Company around October 29, 2007 through the Defendant, the selling company (Account 3 omitted (Account 3 omitted (Fund Code: 2 omitted), and the assessment amount based on the base price of the second beneficiary certificates owned by the Deceased as of February 6, 2012 when the Deceased died was KRW 1,693,823,443.

C. Progress of the preceding lawsuit

1) On April 2, 2015, the Plaintiff filed a lawsuit against the Defendant for payment of the amount equivalent to 2/9 of the Plaintiff’s statutory inheritance among the balance of the instant deposit claim as of February 6, 2012 and the appraised amount of the first and second beneficiary certificates as of April 16, 2015, against the Defendant, the instant deposit claim owned by the Defendant at the time of the death of the Deceased, and the part corresponding to the Plaintiff’s statutory inheritance among the beneficial rights of the first and second investment trusts, which were divided and reverted to the Plaintiff at the time of inheritance. The Plaintiff filed a lawsuit seeking payment of the amount equivalent to 2/9 of the Plaintiff’s statutory inheritance among the balance of the instant deposit claim as of February 6, 2012, and the appraised amount of the first and second beneficiary certificates as of April 16, 2015

2) On August 26, 2015, the foregoing court held that all of the instant deposit claims and the beneficial rights of the first and second investment trust (referring to both the instant deposit claims and the beneficial rights of the first and second investment trust without distinguishing them from the beneficial rights of the first and second investment trust) are divided and reverted to co-inheritors according to their statutory shares in inheritance at the same time as the content of the payment begins. The judgment rendered on February 6, 2012, based on the balance of the instant deposit claims as of February 6, 2012, the amount assessed on the first and second beneficial rights of KRW 546,119,527 [2,457,537,872 [514,112 won + 763,200,317 won + 1,693,423,443 won] x 2/929 x 2015 / 2015 / 2015 / 2015 (hereinafter referred to as “the judgment”).

(d) Terms and conditions of second investment trust;

The terms and conditions of investment trust No. 2 relating to this case are as follows:

Article 21 (Redemption of Beneficiary Certificates) (1) of the Table included in the main sentence (Redemption of Beneficiary Certificates) (1) A beneficiary may at any time file a claim for redemption of Beneficiary Certificates. Article 22 (Redemption Price and Method of Redemption) (1) The redemption price of Beneficiary Certificates shall be the base price of the relevant type of Beneficiary Certificates publicly notified on the third business day from the date on which the beneficiary files a claim for redemption.

[Reasons for Recognition] Class A: Evidence Nos. 2, 3, 4; Evidence Nos. 15; the purport of the whole pleadings

2. Summary of the plaintiff's assertion

The claim of this case and the right to benefit of the first and second investment trusts are claims separate from the deceased’s legal share at the time of inheritance commencement. As such, in cases where interest on the deposit accrued after the deceased’s death or the base price of beneficiary certificates increased, the remainder of the deposit claim of this case or the appraised value of the first and second beneficiary certificates is reverted to the plaintiff, as well as the portion equivalent to the plaintiff’s legal share in the difference between the appraised value as of the date of delivery of a copy of the complaint of the preceding lawsuit and the appraised value as of the deceased’s death, or the remainder or appraised value as of the deceased’s death. However, since the defendant failed to disclose the balance or appraised value as of the date of delivery of a copy of the complaint of the preceding lawsuit, it was inevitable for the plaintiff to claim part only of the amount equivalent to the plaintiff’s legal share in the remaining amount or appraised value as of the deceased’s death as of the date of delivery of a copy of the complaint of the preceding lawsuit, the defendant is obligated to pay 300 won and 200 won to the plaintiff’s statutory share (= 30050.

1) As to the instant deposit claim, 38,000 won (=175,495 won x 2/9,000 won x less than 2/9,1,000 won), out of the difference of 689,607 won in the balance as of April 16, 2015 and 514,12 won in the balance as of February 6, 2012, which falls under the Plaintiff’s statutory share of inheritance (=38,000 won).

2) As to the first beneficiary certificate, the first investment trust was already terminated before the delivery of a duplicate of the complaint in the preceding lawsuit, and thus, the repayment of KRW 955,158,778 was deposited into the deceased’s account in the name of the deceased. As such, the difference between KRW 955,158,778 and KRW 763,20,317 as of February 6, 2012, the difference between KRW 191,958,461 and KRW 42,657,00 (= KRW 191,958,461 x KRW 2/9,100).

3) As to the second beneficiary certificate, the Plaintiff filed a claim for redemption with respect to the number of parts corresponding to the Plaintiff’s statutory share in the beneficiary certificate of the second beneficiary certificate by serving a copy of the previous suit on April 20, 2015. Thus, the Plaintiff shall be deemed to have filed a claim for redemption with respect to the amount equivalent to the Plaintiff’s statutory share in the amount calculated as of February 6, 2012, out of the difference between KRW 2,554,789,568 as of April 20, 2015 and KRW 1,693,823,443 as of February 6, 2012 and KRW 1,691,325,00 (=2,54,789,568 won - KRW 1,693,823,443 won) x less than KRW 2/9,1,000].

3. Determination on the defense prior to the merits

The defendant has already received a favorable judgment against the defendant by demanding payment of the amount equivalent to the plaintiff's statutory share of inheritance among the assessed amount of the deposit claim of this case and the first and second beneficiary certificates through the preceding lawsuit, and thus, the lawsuit of this case is unlawful as it goes against the res judicata of the previous judgment, and thus, is unlawful.

Where it is clearly stated that a part of a claim is a claim while filing a lawsuit demanding performance of a part of the claim, res judicata effect of a final and conclusive judgment on the part of the claim does not extend to the remaining claims. In such a case, it is not necessary to clarify the purport of specifying the entire claim amount and claiming only part of the claim and reserving the remainder of the claim. It is sufficient to indicate that the scope of the claim in the part of the claim is preferentially claimed as part of the entire claim by indicating that the scope of the claim in question is distinct from the remaining claim, and by indicating that the scope of the claim in the part of the claim is preferentially claimed as part of the entire claim. In addition, the determination as to whether the claim is a part of the claim ought to be examined as well as the entries in the written complaint, briefs, etc. and the progress of the lawsuit (see, e.g., Supreme Court Decisions 2013Da96165, Jul. 27, 2016; 87Meu247

According to the evidence evidence No. 4 and evidence No. 1, the plaintiff filed a prior lawsuit and filed a claim based on the balance or appraised amount as at February 6, 2012, but stated that if the defendant disclosed the balance or appraised amount as at the time of service of the copy of the prior lawsuit as at the date of service of the duplicate of the prior lawsuit, the defendant would expand the purport of the claim. On August 12, 2015, it is recognized that the pleading was immediately concluded and the judgment was rendered on August 26, 2015. In light of the above facts, in the prior lawsuit, the plaintiff clearly stated that the scope of the claim partially claimed in the prior lawsuit is distinguished from the remaining claims to the extent that it can specify the scope of the hearing, and that the plaintiff is claiming a priority as part of the entire claim. Therefore, it is reasonable to view that the plaintiff's claim in the prior lawsuit does not extend the res judicata effect of the previous judgment because it constitutes an explicit claim. Therefore, the defendant's defense on the merits of the previous lawsuit is without merit.

4. Judgment on the merits

A. Claim on the deposit claim of this case

In a case where the content of performance is jointly inherited, as in a monetary claim, in principle, the claim is naturally divided and reverted to co-inheritors according to the statutory share of inheritance at the time of inheritance commencement (see, e.g., Supreme Court Order 2014SY122, May 4, 2016). As such, at the time of inheritance commencement due to the death of the deceased, the part corresponding to the Plaintiff’s legal share of the instant deposit claim is reverted to the Plaintiff. The fact that the balance of the instant deposit claim as of April 16, 2015, as of April 16, 2015, is 689,607, and there is no dispute between the parties. The remaining balance of the instant deposit claim as of February 6, 2012 as of February 175, 495, the Defendant is obligated to pay the difference to the Plaintiff (i.e., KRW 689,607 won - 514,1205 won).

(b) Claim for 1 beneficiary certificates

The fact that KRW 955,158,778 was terminated on April 2, 2015, prior to the delivery of a copy of the complaint in the preceding lawsuit, and the repayment of KRW 1 beneficiary certificates of this case was deposited in the deceased’s account in the name of the deceased is as seen earlier. As such, the Defendant is obligated to pay the Plaintiff the repayment of KRW 955,158,778, and KRW 763,200 as of February 6, 2012, which is the difference between KRW 191,958,317 and KRW 191,958,461, which is the Plaintiff’s statutory share of inheritance (i.e., KRW 191,958,461 x less than KRW 2/9,100). As such, the Defendant is naturally liable to pay the Plaintiff’s share of inheritance to the heir at the time of the commencement of the split-off and the heir’s share of inheritance at the same time after the commencement of the split-off.

(c) Claim for 2 beneficiary certificates

First, in light of the following circumstances, it is reasonable to view that the right to benefit from the 2nd investment trust is a divisible claim and naturally divided and reverted to the inheritor at the time of inheritance commencement, and that the right to benefit from the 2nd investment trust is subject to division of inherited property and is not attributed to the inheritor as a matter of course at the time of inheritance commencement, and that the right to benefit from the 2nd investment trust is not attributed to the inheritor in proportion to the statutory share of inheritance. Therefore, the Plaintiff cannot file a claim against the Defendant for an independent claim against the number of shares in the 2nd beneficiary certificates which correspond to the Plaintiff’s statutory share of inheritance or for a claim for payment of the amount equivalent to the Plaintiff’s statutory share of inheritance out of the assessed amount of the 2nd beneficiary certificates. Accordingly,

1) (1) In addition to the right to claim distribution of profits or the right to claim redemption, an investor who purchased a beneficiary certificate of an investment trust has the right to claim inspection of books and documents relating to collective investment property against the collective investment business entity pursuant to Articles 91 and 186(2) of the Financial Investment Services and Capital Markets Act, and the right to exercise voting right at the general meeting of beneficiaries pursuant to Article 190 of the same Act. Accordingly, the right to benefit of an investment trust is distinguishable from the right to claim a distribution of profits or the right to claim a reimbursement, such

② According to Article 189(1) and (2) of the Financial Investment Services and Capital Markets Act, a collective investment business entity issues beneficiary certificates by equally dividing the beneficial rights of an investment trust and a beneficiary has equal rights according to the number of units of beneficiary certificates regarding the redemption of trust principal and the distribution of profit. In cases where the beneficial rights of an investment trust are deemed to naturally belong to the heir according to the statutory shares of the investment trust at the time of inheritance, the beneficiary certificates of an investment trust, which cannot be divided into less than one unit, may cause a problem in the division of beneficiary certificates of an investment

③ In cases of stocks, given the status of a shareholder of an inheritee, i.e., a group legal right, such as voting rights, and the problems arising from the occurrence of fractional shares, it is difficult to view that a divisible claim belongs to co-inheritors at the same time as inheritance commencement and at the same time, and accordingly, it is deemed that the co-inheritors become the subject of division of inherited property (see, e.g., Supreme Court Decision 2003Da7074, May 30, 2003). In light of the above characteristics, it is reasonable to treat the right to benefit of an investment trust as similar

2) In cases where beneficiary certificates of an investment trust are redeemed, the collective investment business entity shall retire the relevant securities in accordance with Article 235(7) of the Capital Markets Act. After the redemption of the collective investment securities is completed in accordance with a certain inheritor’s claim for redemption and the said securities have been retired, there is no way to reinstate the beneficiary’s specific share of inheritance changed differently from the statutory share of inheritance due to the circumstances such as the existence of an excessive special beneficiary among the inheritors or the recognition of some inheritor’s contributory portion. Thus, there is no way to reinstate it

D. Sub-committee

Therefore, the Defendant is obligated to pay to the Plaintiff 42,695,000 won (=38,000 won + 42,657,000 won + 42,657,000 won) and to pay damages for delay calculated at the rate of 5% per annum under the Civil Act from August 12, 2016 to May 11, 2017, which is the date the Defendant rendered a reasonable judgment that it is reasonable to dispute the existence and scope of the Defendant’s obligation to perform as to the instant lawsuit from August 12, 2016, which is the date of delivery of a copy of the complaint of this case for which the Defendant was demanded to discharge (the Plaintiff sought damages for delay from April 29, 205 to the date of full payment). However, as seen earlier, the Plaintiff’s claim for payment as the instant lawsuit cannot be viewed as being a delivery of a duplicate copy of the complaint of this case, and therefore, the Plaintiff’s assertion is not accepted.

5. Conclusion

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

Judges Kim Young-chul(Presiding Judge)