Supreme Court Decision 2025Da212617, July 16, 2026 [Action for Return of Unjust Enrichment, etc.]

【Holding】

Content of the duty to protect investors borne at the investment solicitation stage by the collective investment business entity of a professional-investor-type private investment trust under the former Financial Investment Services and Capital Markets Act (the “Capital Markets Act”, 자본시장법) and by the investment brokerage business entity selling the beneficiary certificates of the investment trust / Whether such duty of the collective investment business entity and the investment brokerage business entity to protect investors is excluded merely because the investor is a professional investor rather than a general investor (negative), and whether a duty to explain is recognized with respect to matters of which the investor is already sufficiently aware or investment risks that could not reasonably be foreseen at the time of the investment solicitation (negative)

【Summary of Decision】

The collective investment business entity of a professional-investor-type private investment trust under the former Capital Markets Act (before being amended by Act No. 16657, Nov. 26, 2019) is a person who invests and manages the investment trust property entrusted to a trust business entity pursuant to Articles 9(18) and 184(2) of the same Act and is in a position to primarily produce and circulate information on the investment trust; accordingly, it bears a duty of care to protect investors by providing accurate information on the profit structure and risk factors of the investment trust to the investment brokerage business entity selling the beneficiary certificates and to investors, so that investors can make reasonable investment decisions based on that information. The investment brokerage business entity selling the beneficiary certificates of the investment trust is in a position, as the investor's counterparty, to solicit investment from investors and sell beneficiary certificates in its own name; accordingly, it bears a duty of care to protect investors by clearly understanding the contents of the prospectus, management proposal, etc. provided by the collective investment business entity and then explaining the profit structure and risk factors of the investment trust to investors accurately and in a balanced manner, so that investors can make reasonable investment decisions.

Such duty of the collective investment business entity and the investment brokerage business entity to protect investors at the investment solicitation stage cannot be regarded as excluded merely because the investor is a professional investor rather than a general investor; however, the scope and degree of the duty to protect investors may be determined differently in consideration of the characteristics and risk level of the investment trust property and the investor's investment experience and expertise. In such cases, the extent of explanation to be given to the investor should be determined by comprehensively considering the characteristics and risk level of the relevant beneficiary certificates and the investor's investment experience and capabilities, but a duty to explain cannot be recognized even with respect to matters of which the investor in the beneficiary certificates is already sufficiently aware, or investment risks that could not reasonably be foreseen at the time of the investment solicitation.

【Referenced Statutes】

Articles 9(5), (18), and (19)2, 37, 47 (see Article 19 of the current Act on the Protection of Financial Consumers), and 184(2) and (5) of the former Capital Markets Act (before being amended by Act No. 16657, Nov. 26, 2019)

【Referenced Precedents】

Supreme Court Decision 2008Da52369, November 11, 2010 (Gong2010Ha, 2227)

Supreme Court Decision 2010Da55699, November 11, 2010 (Gong2010Ha, 2257)

Supreme Court Decision 2010Da76368, July 28, 2011 (Gong2011Ha, 1757)

Supreme Court Decision 2010Da86815, December 26, 2012

Supreme Court Decision 2014Da17220, February 26, 2015 (Gong2015Sang, 537)

Supreme Court Decision 2014Da214588, 214595, March 26, 2015

Supreme Court Decision 2013Da59890, September 10, 2015

Supreme Court Decision 2014Da15996, November 12, 2015 (Gong2015Ha, 1877)

Supreme Court Decision 2016Da223494, February 27, 2020 (Gong2020Sang, 667)

Supreme Court Decision 2024Da221141, April 2, 2026 (Gong2026Sang, 1039)

(Source: Supreme Court Decision 2025Da212617, July 16, 2026 | Judicial Information Disclosure Portal, Precedents)

2026. 10. 14. · By Attorney Dongwoo Shin