Requirements for establishing tort liability in the event that an investment made by an employee of a securities company incurred a loss

In a case where an officer or employee of a securities company solicits an investment in violation of the mandatory provisions of a securities company to guarantee the profit of the company, but the investment loss incurred as a result of an investment, the existence of positive deception as to whether to guarantee the profit of the investment is established shall not be required, but at least take into account the transaction details and transaction methods, customer’s investment situation (property status, age, and level of social experience), transaction risk and the degree of explanation as to it, and then, the act in question constitutes a case where a general investor, who lacks experience, interferes with the proper formation of awareness about the risks inevitably accompanying the transaction, or actively solicits a transaction involving excessive risk in light of customer’s investment situation, and thus, it can be evaluated as an act in violation of the duty to protect the customer.

Article 750 of the Civil Act, Article 52 subparagraph 1 of the Securities and Exchange Act

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant-appellant-appellee)

[Plaintiff-Appellant-Appellant-Appellee-Appellant] Plaintiff 1 and 2 others

[Defendant-Appellant] Plaintiff 1 et al.

Seoul High Court Decision 92Na39206 delivered on April 20, 1993

The part of the lower judgment against the Defendant regarding the ancillary claim is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, while the plaintiff entered into a securities transaction consignment contract with the non-party ○○ Securities Co., Ltd. (hereinafter referred to as ○○ Securities Co., Ltd.) and entered into the securities transaction consignment contract, the court below acknowledged that if the plaintiff agreed to invest the plaintiff's consignment deposit in the securities transaction under the defendant's management and responsibility, but the defendant guaranteed the plaintiff's interest corresponding to 1.5% per month, and if the profit from the securities transaction is above, the plaintiff's interest should be divided at the ratio of the plaintiff 7 and the defendant 3. Thus, the plaintiff deposited 8.5 million won as the securities transaction consignment deposit contract between May 10, 1989 and December 23 of the same year, the court below acknowledged that the defendant agreed to secure the plaintiff's interest in the securities company's principal and interest rather than the defendant's interest in the securities transaction, which constitutes an unlawful distribution agreement with the plaintiff's securities company's principal and thus, the defendant's claim for such an unlawful distribution agreement is no longer effective for the plaintiff's interest in the securities transaction.

In addition, if the Plaintiff entered into an investment agreement with the Defendant on September 6, 1988, with a view to the fact that it was significantly less than 50 million won, 12 million won, 11.7.4 million won, 8 million won, and 16 million won, 12.4 million won, and 5 million won, and 4.5 million won, more than that of the Plaintiff’s investment in securities transaction with the Defendant on December 9, 12.14 of the same year, and 13 million won, more than that of the Plaintiff’s investment in securities transaction with the Defendant on December 14 of the same year, 1988, and 50 million won, more than that of the Plaintiff’s investment in securities transaction with the Defendant on December 20 of the same year, the lower court held that it was difficult for the Plaintiff to independently purchase the securities transaction with the Defendant on December 29, 198, and 9 million won, more than that of the Plaintiff’s investment in securities transaction with the Defendant.

2. However, the court below cannot accept part of the plaintiff's conjunctive claim by recognizing the defendant's tort liability based on its stated reasoning.

In light of the fact that a false securities transaction is naturally accompanied by various uncertain factors, and it is natural for an investor to bear a loss that may be incurred due to its investment within a certain scope as an investor, in view of the fact that the officer or employee of a securities company recommended an investment in violation of the strong regulations, but the investment result loss is constituted tort liability against the investment, even if not, in order to establish tort liability against the investment, it is not required to take into account the transaction circumstance, transaction method, customer’s investment situation (property status, age, social experience, etc.), transaction risk, and the degree of explanation thereof, etc., at least after comprehensively considering the transaction circumstance, transaction method, customer’s investment situation (property status, age, social experience, etc.), and then, an investment with insufficient experience in the soliciting act constitutes a case where an investment interferes with the proper formation of awareness about the risks inevitably accompanying the transaction, or actively recommended the transaction accompanied by excessive risk in light of the customer’s investment situation, and ultimately, it can be evaluated as an act with knowledge of illegality.

However, it is difficult to view that the reasons cited by the court below alone meet the above requirements for this point. Rather, examining the reasoning of the court below and other various issues surrounding the instant case, which can be seen by the reasoning of the court below, the Plaintiff had been engaged in securities investment even before conducting the instant securities transaction. Even if only the details of the transaction revealed by the court below, it appears that the Plaintiff had not been engaged in such securities investment and had accumulated considerable knowledge and experience in securities investment. Meanwhile, according to the records, the Plaintiff, as a male of 37 years of age (date of birth omitted) at the time of the instant securities transaction, was engaged in the instant securities transaction under the name of the Defendant, who had worked in Hanjin Securities Co., Ltd. at the time of 1988, and it was difficult for the Defendant to grasp the risks of the instant securities transaction under the name of ○○ Securities Co., Ltd. at the time of the instant securities transaction with the above ○○ Securities Co., Ltd., and it was difficult for the Plaintiff to comprehensively have been informed of the type of securities transaction and the instant securities transaction.

The lower court did not fully state the circumstances leading to the instant transaction, such as the transaction circumstance and method, the Plaintiff’s investment situation, etc., and acknowledged tort liability against the Defendant solely for the reasons indicated in its holding, the lower court erred by misapprehending the legal doctrine regarding the establishment of tort due to unfair solicitation, or by failing to exhaust all necessary deliberations. The grounds of appeal are with merit.

3. Therefore, the part against the Defendant regarding the conjunctive claim of the lower judgment is reversed, and that part of the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-ju (Presiding Justice)