투자신탁 판매회사의 법적 지위와 착오취소 소송의 해결방향

This study originates from concerns regarding the legitimacy of investors claiming mistake-based contract rescission against sales companies to recover unjust enrichment from their proprietary assets in light of recent private equity fund scandals involving unlawful activities by management companies. To address this issue, the study examines legislative changes and financial transaction practices related to investment trusts. Based on this foundation, it analyzes the legal status of sales companies and explores possible resolutions for litigation concerning mistake-based contract rescission. The key findings of this study can be summarized as follows: First, in the legal framework of investment trusts, the relationship between sales companies and investors can be categorized into three types. Assuming that the sales company operates as an investment brokerage business under the Financial Investment Services and Capital Markets Act (FSCMA), its legal status is limited to that of an intermediary rather than a contractual party in the legal relationship. The sales company is required to receive the investor’s declaration of rescission due to mistake and forward it to the management company; however, it does not bear the obligation to return funds from its own proprietary assets. Second, even if one assumes the validity of judicial precedents recognizing mistake-based rescission claims against sales companies, as long as the sales company acts in good faith, it is difficult to conclude that it has obtained a substantive financial benefit based on the underlying monetary transactions. If the sales company has transferred the received funds in accordance with the investor’s instructions, the presumption of existing monetary benefits is nullified. Consequently, litigation concerning mistake-based rescission should target the management company rather than the sales or trustee company. The proper form of claim should be a request for a declaration instructing the trustee to remit funds to the investor. Third, broadly recognizing mistake-based rescission in financial transactions could undermine special provisions for damages under the Financial Consumer Protection Act and compromise the principle of investor self-responsibility. Therefore, a cautious approach is necessary in acknowledging mistake-based rescission in financial transactions, particularly regarding mistakes in motive. Such rescission should only be permitted in exceptional cases where existing mechanisms, such as liability for mis-selling, fail to provide adequate protection.