투자중개업자에 대한 수익증권 판매계약의 취소와 부당이득반환청구 - 하급심 판결의 동향을 중심으로 -

Since the so-called "Lime Fund Crisis," investors in investment trusts have begun to claim the cancellation of contracts for sale of beneficiary securities due to fraud or error and the return of unfair gains equivalent to the investment in almost all lawsuits filed against investment brokers. In response, investment brokers argued that they were not responsible for returning unfair gains and losses on investments because they were not parties to the contract to sell beneficiary certificates with investors and that the investment was not left in them. As a result, the dispute between investors and investment brokers in investment trusts, which has increased rapidly in recent years, has been fiercely contested as the biggest issue is whether a sales contract for beneficiary securities is signed between them and whether an investment broker should return the investment as an unfair advantage. Looking at the contents of the recently sentenced lower court rulings, the court's judgment on the issue tends to be organized as "an investment broker is a party who has signed a contract directly with an investor and is a party who has to return the investment as an unfair advantage following the cancellation of the contract, but the scope of the return of unfair gains may vary depending on whether the investment broker is a good-faith beneficiary and the existence of existing profits.“ However, considering the legal relationship of investment trusts under the Capital Markets Act and the actual transfer process of beneficiary securities and investments, it is difficult to see a 'sale contract' for beneficiary securities between investors and investment brokers, and the closest to the legal status of an investment broker selling beneficiary securities under the Capital Markets Act should be viewed as a 'broker'. Even if the investment broker is obligated to return unfair gains on the investment, the existing profits should be considered extinguished because the investment has been transferred to the trust business. In the end, in a lawsuit in which an investor in an investment trust asks for the responsibility of an investment broker, a claim for the return of unfair gains worth an investment due to the cancellation of a contract with an investment broker will only be beneficial if the investment broker is recognized as a beneficiary of malicious intent.