펀드의 설정 또는 판매에 관여한 자들 간 책임에 관한 판례 평석-대법원 2021. 6. 10. 선고 2019다226005 판결을 중심으로-

The Supreme Court ruled that in the case where the liability for default and the liability for tort compete, the contractual disclaimer does not apply to tort liability unless there is an agreement to apply the contractual disclaimer to claims for damages caused by tort explicitly or implicitly. However, the High Court referred to the 1983 All-Agreement Decision and ruled that the contractual disclaimer applies to tort liability even if there is no separate explicit or implied agreement. According to the judgment of the en banc, the disclaimer (regulation limiting the amount of compensation) listed on the bill of lading is also effective for tort liability. In this paper, the validity of the grounds presented by this ruling is reviewed. In this case, there is an exemption agreement that it is not possible to hold contractual liability if there is no gross negligence. If there is no explicit or implied agreement to apply this agreement to tort liability, there is a question of whether to apply it to tort liability. The legal principles on the status and obligations of the fund's sales company and management company are examined, and in this case, the fault of the plaintiff sales company and the defendant management company is reviewed. The High court did not examine both the fault of the asset management company and the plaintiff in detail, so it was carefully reviewed from the perspective of fair sharing of damages. In a case where a person who bears the obligation to return unfair gains due to cancellation and the obligation to compensate for damages due to joint illegal acts reimburses the obligation to return unfair gains, the question was raised whether the company could exercise its right to indemnify if it reimbursed its obligation to return unfair gains. The High Court ruled that even if the debtor reimbursed the obligation to return unjust enrichment, the right to indemnify could not be exercised. But the Supreme Court ruled that claims for the return of unfair gains and claims for damages are for the same economic benefit, and that if the debtor repays the obligation to return unfair gains, the obligor who repays the obligation can exercise the right to indemnify other joint offenders. In this paper, the validity of the legal principle was reviewed from the perspective of fair sharing of damages.