2. All appeals filed by the plaintiffs are dismissed.

3. The costs of the lawsuit are assessed against the Plaintiffs.

The Defendants jointly and severally pay to Plaintiff 1 Co., Ltd. 3,789,286,792 won, Plaintiff Esch Rexroth Insurance Co., Ltd. 2,304,401,700 won, Plaintiff Special Post Office Pension Management Agency 1,156,382,028 won, and each of them, 5% per annum from September 29, 201 to the date on which the duplicate of the instant complaint is served, and 20% per annum from the following day to the date on which the copy of the instant complaint is served.

【Purpose of Appeal】

The plaintiffs: The part against the plaintiffs in the judgment of the court of first instance shall be revoked, and the defendants shall jointly and severally pay 2,923,135,354 won to the plaintiff 1 corporation (hereinafter "the plaintiff 1 corporation"), 1,803,473,370 won to the plaintiff 1,803,473,370, and 908,315,337 won to the management body of the defendant 1's special post office pension (hereinafter "post office pension") and 5% per annum from September 29, 201 to the delivery date of the complaint of this case, and 20% per annum from the next day to the day of complete payment.

Defendants: as set forth in the Disposition.

(a) Request for ship financing of mileage;

Since around 2006, Nonparty 3, the representative of the shipping match, Neman Co., Ltd. (hereinafter “Breman”), sought a method of raising funds to purchase and operate a new vessel. Nonparty 3, around April 2006, sought a method of raising funds to purchase a vessel. Nonparty 3 concluded a time charter contract with a shipping company with a high credit rating, and concluded a time charter contract with Nonparty 1 to create a vessel financing fund that covers the value of the hire claim and the vessel of the time charter contract as security for the purpose of raising funds to purchase a vessel. Nonparty 3, who became aware of the introduction of the non-party 5 (the non-party 3 was an employee of the non-party 3, who works for the non-party 5 (the non-party 3, the non-party 3, the non-party 1, the company, or the non-party 1, the non-party 1, who was an employee of the Defendant Se-Securities Co., Ltd. (hereinafter “Searping”).

(b) Conclusion of the first time charter between hybrid and the Hanjin Shipping;

Around June 2006, Nonparty 3 entered into a contract on the purchase of the instant vessel at USD 13,650,000,000 with the heavy shipping line (here after purchase, changed the name of Brazil; hereinafter “the instant vessel”). Nonparty 3, a person in charge of the tank shipping around that time, agreed to enter into a contract on the purchase of the instant vessel between Nonparty 4 and Hanjin Shipping for 2 years. However, Nonparty 3, a two-year time charter period from Nonparty 1, demanded Nonparty 4 to re-examine that it is difficult to attract funds due to short time, and again, Nonparty 4 to increase the time charter period. Accordingly, between Brazil and Hanjin Shipping, the time charter period of 10 years + 10 years prior to that time charter period + 10 years prior to that of the first time charter period, and the first time charter period of 20 years prior to that of the instant vessel.”

C. Determination of the formation of the fund

Around July 2006, Defendant 1 Co., Ltd. (hereinafter “Defendant 1”) received and examined “B’s Investment Plan” (Evidence 1) to the effect that he would create a fund that invests in the instant vessel as a repayment resource for charterage claims, etc. of the instant vessel to be purchased from Defendant SK securities, and decided to participate in the said fund’s asset management company.

Defendant 1 prepared, around August 2006, the instant proposal for management of the Industrial Property Fund (No. 2, No. 1, hereinafter “instant proposal”) based on the content of the instant time charter, and Defendant 1 solicited investment in the process of issuing it to the Plaintiffs by modifying or supplementing, as is, or partially amending, the instant proposal. The main content of the instant proposal for management (No. 4; hereinafter “instant amendment proposal”) issued by Plaintiff 1 while soliciting Defendant KS to invest in the said fund is as follows. The instant proposal contains a comprehensive risk analysis among the instant proposal and the content of the attention at the time of investment, including the past or anticipated values that are included in the instant proposal, and its numerical values continue to exist in the future. Defendant 1’s revised proposal does not include any profits or losses arising from the performance-based dividends, or any losses arising from the operation of the instant fund, and the content of the instant proposal for management of the instant investment trust is not subject to the instant amendment proposal for the Plaintiff 1’s respective investment trust-related investors.

본문내 포함된 표 Ⅰ. Project 개요 1. 매입대상선박 ○ DWT : 8,511DWT(5,524 Grt) {DWT는 상선에 화물을 만재했을 경우 선박의 무게(재화배수톤)에서 선박 자체의 무게(경화배수톤)를 뺀 무게로서 당해 상선에 적재가능한 톤수를 말함} 2. 선박펀드 개요 ○ 만기: 5년(2006년 8월 28일 ~ 2011년 8월) ○ 원리금 상환: 1년 단위 원금 불균등상환[1 ~ 4년: 10%/5년: 60%], 3개월 단위 이자 지급 ○ 신용보강방안으로 대체선사(세광쉽핑) 확보: 일정사유(차주의 부도 등) 발생 시 이 사건 선박에 관하여 차주의 지위를 승계, 이 경우 선사의 변경에도 용선계약은 유지조항 삽입 4. 추정현금흐름 ○ 용선계약은 〈초기 2년〉 + 〈1년 단위 갱신[3년간]〉 ○ 현금흐름 가정 - 용선료 가정: 1 ~ 2년 매일 10,500달러, 3 ~ 5년 매일 11,000달러 - 연간 운항일수: 1 ~ 2년, 4 ~ 5년 360일, 3년 350일 Ⅲ. 기업개요 1. 선사: 브리지마린 ○ 운항선박: Chemical Tanker 4척: Lucky 7, Venus 7, Pegasus 7, Uranus 7 2. 대체선사: 세광쉽핑 ○ 운항선박: Chemical Tanker 13척: Lucky 7, Venus 7, Pegasus 7, Uranus 7을 포함한 13척 Ⅱ. 환경분석 1. 시장 내부 ○ 아시아 지역 중형선 시장 성장 전망 2. 시장 외부 ○ 선박의 중/대형화 ○ 무역 및 선박수요 증가 ○ IMO Ⅱ Type 수요 증가: IMO Regulation 강화로 IMO Ⅲ Type 선박 점진적 퇴출 (IMO는 국제해사기구로, IMO Ⅱ Type의 선박은 선체가 스테인리스 재질이어서 일반적인 석유화학제품 뿐만 아니라 특수한 위험 석유화학제품 적재할 수 있는 구조의 선박을 말하며, IMO Ⅲ Type의 경우 선체에 에폭시 코팅만 되어 있어 일반적인 화학품을 적재할 수 있을 뿐, 특수한 위험 석유화학제품은 운반할 수 없는 구조의 선박을 말한다) Ⅳ. Risk 분석 1. 선가 하락 Risk [1] ○ Risk 요인: 추정 현금흐름상 5년 후 원금상환[최초 원금의 약 50%]을 위해서 선박을 매각해야 함 ○ 5년 후 선박 가격에 따라 원금 상환 현금흐름에 영향을 미치므로 선박 자체의 담보력이 매우 중요함 ○ 추정 현금흐름상 선박 매각으로 조달해야 할 최소 금액은 약 38억 원으로서 현재 선박 매입가격은 약 1,365만 달러(5년 후 추정가격은 81 ~ 90억 원) ○ 최근 신조가격 및 중고선 매매가격 상승 추세, 중소형 Chemical Tanker에 대한 수요 증가, 매매가격 하방경직성 확보 1. 선가 하락 Risk [2] : 사례분석 1. 선가 하락 Risk [3] [4] : 선가 추정 ○ 최근 신조선가 추이 및 중고선 매매가 추이를 볼 때 급격한 가격하락 위험은 높지 않음(가격 추정에 있어서 선박 내용연수를 고려한 매우 보수적인 관점의 정액 상각법 적용 가능) 2. 용선료 하락 Risk [1] ○ Risk 요인(용선계약 최초 2년 계약 후 3년간 1년 단위 갱신, 용선료 최초 2년간 고정 이후 3년간 매년 Refixing) ○ 3 ~ 5년차 용선료 변동에 따라 원리금 상환 현금흐릅에 영향을 미침, 통계적으로 Tanker선 운임료의 변동성이 상대적으로 가장 낮음 ○ 운임지수 중 탱커선이 가장 안정적인 모습을 보이고 있으며 30K DWT 탱커선의 경우 용선료가 최고 수준인 2004년을 포함한 고점/저점 비율이 1.62로 가장 안정적인 모습을 보이고 있음 2. 용선료 하락 Risk [2] ○ Worst Case로 7년 평균 용선료와의 Gap보다 높은 하락율인 약 14% 적용 ○ 1년 T/C Rate 11,000달러/일 가정, 약 14% 할인 → 9,500달러/일 Q ＆ A Q: 만약 환율, 용선료, 선박가격이 하락한다면? A: 향후 2년간 용선료는 고정되어 하락위험이 없으나 3년 이후 용선료 하락과 환율 하락 리스크가 있습니다. 그러나 3종 수익권 형태의 현금유보액이 펀드에 설정되어 있기 때문에 최악의 경우 3 ~ 5년차 용선료가 14% 하락하고 동시에 평균 환율이 달러당 860원까지 하락하여도 원리금 상환에 문제없는 구조입니다. 또한, 선박의 가격은 정액상각법에 따라 5년 후 약 81억 원이나 이익적립금 유보를 통해 최소 선박의 매각가격은 약 37 ~ 64억 원이므로 원금상환에는 무리가 없습니다. Q: 2년 이후 한진해운과의 용선계약이 협상되지 않는다면? A: IMO Regulation 강화로 케미컬탱커의 퇴출이 많아지고 있으나 공급량은 제한적이므로 동종 선박의 사용가치는 계속 높아질 것으로 보입니다. 특히 중동지역의 정유시설 증가와 중국 인도지역 물동량 증가 추세로 에스케이해운, 현대상선 등 대형 해운사의 이 사건 선박 용선의사가 높은 상태이므로 용선되지 않을 가능성은 거의 없습니다.

D. The plaintiffs' investment

The Plaintiffs decided to invest in the said fund in response to the solicitation of Defendant SDR securities. Accordingly, on August 28, 2006, the Plaintiffs concluded monetary claim trust agreement with Defendant 1 and the Industrial Bank of Korea (Evidence No. 2-1, No. 2, No. 3, and a trust agreement with Defendant 1 and Industrial Bank of Korea (hereinafter “instant trust agreement”) with regard to the right to benefit created on charterage claims of the instant vessel between the trustor, the National Agricultural Cooperative Federation (trustee), the Industrial Bank of Korea (Class 1), and Defendant 1 (Trust Company). The instant trust agreement was concluded with the beneficiary of the instant trust agreement, including a special agreement on the instant monetary claim trust basic terms and conditions, and a trust agreement on the trust trust basic terms and conditions (hereinafter “instant trust agreement”). As a beneficiary of the instant trust agreement, Plaintiff 1 made an investment of KRW 7 billion, KRW 4 billion, KRW 4 billion, and KRW 2 billion in the form of purchasing beneficiary certificates of KRW 2 billion (hereinafter “the instant trust structure”).

1) Breman’s (excluding sub-paragraph 3) is appropriated for Class 1, 2, and 3 beneficial rights of the first class (the charterer) of the value of charterage 13 billion won in trust with the National Agricultural Cooperative Federation and the first class of the first class of the interest rate of 8.95% in trust with the Korea National Agricultural Cooperative Federation for the instant vessel (the vessel of this case, the heavy shipping line, the tank vessels) scheduled to be purchased in the future. The first class of beneficial rights is funds to be appropriated for the principal and interest of the instant vessel of this case as funds to be appropriated for the operation of the instant vessel; the second class beneficial rights of this case is funds to be appropriated for the crew, vessel management expenses, and the third class beneficial rights of this case as reserve funds to be appropriated for the above principal and interest of the instant vessel of this case; and the third class beneficial rights of this case are beneficiaries of the second class of the second class and third class of the second class of the second class of the list (3).

2) Defendant 1 Company established the Fund upon entering into a trust agreement with the Industrial Bank of Korea (No.4), and entered into a consignment contract with Defendant KS Securities and the Fund (No.4), and sells beneficiary certificates through Defendant KS Securities, and attracts investors, and deposits KRW 13 billion in the Industrial Bank of Korea (No. 13 billion).

3) 중소기업은행은 브리지마린으로부터 위 수익권을 투자금 130억 원으로 양수하고(⑧), 브리지마린은 위 투자금 130억 원으로 이 사건 선박을 구입하여(⑨) 한진해운에 용선한다(⑩).

4) The Industrial Bank of Korea may sell the instant vessel and receive the remainder of the principal with the proceeds from the sale of the instant vessel after five years from the date on which charterage revenues received for five years, the fund management period of the instant case, based on the above beneficial rights that it acquired.

(e) Alteration of the contents of the time charter between the hybrid and the Hanjin Shipping;

Meanwhile, at the time of the conclusion of the instant time charter contract, Nonparty 3 was well aware that Hanjin Shipping had the intent to sub-charter the instant vessel to raise the profit equivalent to the difference in charterage, and thus, around July 20, 2006, Nonparty 3 requested Nonparty 4 to sub-charter the instant vessel to a foreign corporation overseas of balthal lusium for the instant vessel. Accordingly, it is possible to determine six months of the charter period and six months of July 25, 2006 for the instant vessel between Hanjin Shipping and the galthal lusium. Accordingly, the instant time charter between Hanjin Shipping and the balthal lusium was also reflected in the said time charter period, thereby making it possible to extend the said six months and six months (hereinafter “second time charter”).

However, Nonparty 3 and Hanjin Shipping did not notify the Defendants of the changed contents of the second time charter in the course of establishing the instant fund. Rather, Nonparty 3, even after the second time charter, submitted to the Defendants an additional agreement on the instant time charter, which was concluded, thereby actively reducing the contents of the second time charter in relation to the Defendants.

F. Nonparty 3’s forgery of a time charter contract and partial modification of the instant trust agreement

Blore purchased the instant vessel with loans from 13 billion won and Defendant SDR, and operated the instant vessel freely in the form of sub-chartering from Hanjin Shipping. Nonparty 3, around August 2008, 200 after the lapse of 2 years specified as the period of the first time charter in the instant time charter contract, which was submitted to the Defendants, entered into a contract with the maturity of 5 years (the Fund was 2+1+11 +11 of the instant time charter period, 3 years), following the period of the first time charter, 3 years (the Fund was 5 years later), following the 2008 charter period, which was entered as the period of the first time charter in the instant time charter contract, 200 days later, 3 months later than the initial time charter period of the instant time charter contract, 1+11 of the instant time charter period, 3 months later than the initial time charter period of the said case, 10 months later than the instant time charter period of the said case, 3 months later.

Accordingly, Defendant 1 notified the Plaintiffs on September 10, 208 that the terms and conditions of the instant time charter agreement were modified as to the forged time charter agreement (the instant time charter agreement) during which the risk of the fluctuation occurred during the instant time charter agreement (the instant time charter agreement was amended). In lieu of destroying the terms and conditions of the type 3 time charter agreement from the Plaintiffs, Defendant 1 consented to the modification of the instant trust agreement by adjusting the partial contents of the right to benefit (the period of redemption of principal is from 1 to 6 months) instead of destroying the terms and conditions of the instant time charter agreement.

(g) Results of the actual inspection of the financial crisis and hybrid;

As seen earlier, the instant time charter was reduced to one year as of July 25, 2006 by the second time charter, and the said time charter was de facto operated in the form of sub-chartering of the instant vessel from Hanjin Shipping.

However, at the time of the creation of the Fund, the shipping industry, which had enjoyed from the 1008s, began rapidly due to the global economic crisis such as Livenman Syman situation. Korea Shipping reduced its size as the tank shipping business as of July 1, 2007, and it started to fall from July 2008, when the bDI (BDI) 100 points drop from the 10,000 points, and around September 2008, the 1/100 level fell, and around November 2008, the 1000 percentage rate fell from the 10,000 point rate, and the 10,000 percentage rate fell from the 10th of the 10th of the 10th of the 10th of the 10th of the 10th of the 10th of the 10th of the 10th of the 10th of the 2nd of the 10th of the 2nd of the 2nd of the 1st of the global shipping.

H. Response of Defendant 1 Company

On December 19, 2008, Defendant 1 did not enter into the instant reinsurance contract with the Plaintiffs, and was forged by Nonparty 3. The instant vessel’s operation by Hanjin Shipping was deemed to have been carried out by Hanjin Shipping as its own operating power (based on the evidence No. 18 of this case, Nonparty 3 appears to have expressed that the instant vessel was operated freely from the time when the instant fund was established to August 26, 2009 as the second time charter.).

Defendant 1 also held a conference on countermeasures against the Fund in the presence of the Defendants and Nonparty 3 on December 30, 208. At this meeting, since the early repayment of the instant trust agreement occurred due to the existence of false facts, it was discussed as follows: (a) the method of selling the instant vessel after the declaration of nonperformance; (b) the method of designating the instant vessel as a substitute ship company after the declaration of default; (c) the method of assigning the instant vessel as a substitute ship company; and (d) the method of obtaining an alternative (e.g., ensuring additional security for charterage claim under Section 7, which is in operation of hybrid; and (e) the method of securing an additional security for charterage claim under Section 8,00,000, which is difficult to secure the vessel’s sales without any shipping financing due to the lack of vessel financing at the time of global financial crisis; and (e) the situation of the vessel’s sales of the instant vessel is difficult to secure the vessel’s sales of the instant vessel due to the change of its operating environment.

On the other hand, on January 22, 2009, Defendant 1 was guaranteed the payment of the obligation under the instant trust agreement of Bredin for the instant vessel’s substituted ship owner, and acquired the charterage claim under Doe-7 operated by Bredin with the cooperation of Bredin (No. 19) and Doe-7’s shares in Doe-ho7 held by Doe-gu (A). Defendant 1 was also subject to the creation of a security for transfer for the shares in B, which are the relationship between Doe-gu and Doe-ho (B) (the title of 67 and 68 certificates, as well as the file Doe-re’s relationship). In addition, Defendant 1 created a pledge on May 28, 2009 in the account in the name of Bre-Mae-gu.

I. The engine accident, etc. of the instant vessel

In the global economic crisis, Brazil voluntarily operated the instant vessel and repaid its obligations under the instant trust agreement from December 2009 to the date of the global economic crisis. However, on September 30, 2009 and January 30, 2010, the navigation of the instant vessel was suspended on two occasions, and thus, the payment of principal and interest was delayed. Ultimately, around February 2010, Defendant 1 discontinued the operation of the instant vessel as an agent, and Defendant 1’s sales of the instant vessel to the Plaintiff during the period of suspension of navigation of the instant vessel. However, around October 2010, Defendant 1 operated the instant vessel by blacking the vessel’s tank service company, C New Ship, etc. as a substitute. However, the instant vessel was suspended on September 5, 201 and May 23, 2011.

H. Sale of the instant vessel and collection of the Plaintiffs’ partial investments

The instant vessel was sold to KSM Co., Ltd. on July 27, 2011, and KRW 1,024,755,665 remaining after settling accounts of the costs of releasing vessel attachment, etc. among total sales proceeds of KRW 3,661,82,455, including remaining fuel proceeds and value added tax, was deposited into the Fund account.

Plaintiff 1 collected charterage import and vessel sales proceeds of KRW 4,834,621,404, out of KRW 7 billion investment funds of this case. Plaintiff 1 recovered KRW 2,747,679,174, out of KRW 4 billion investment, and Plaintiff 1 recovered KRW 1,379,83,272, out of KRW 2 billion investment funds. Plaintiff 1’s post office pension recovered KRW 2 billion.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 10, Gap evidence 12, 13, 14, Gap evidence 16 through 21, Gap evidence 25, 26, Eul evidence 1 through 65, Eul evidence 67, 68, Eul evidence 5 and 6 (including each number in case of additional numbers), Eul evidence 67, 68, Eul evidence 5 and 6 (including each number in case of additional numbers), witness of the first instance trial, witness of the first instance court, witness of the non-party 6, non-party 7, non-party 8, non-party 9, and non-party 10, the purport of the whole pleadings, and the purport of the whole pleadings.

2. The plaintiffs' assertion

A. The Defendants, while preparing and explaining the instant proposal, etc., or soliciting the Plaintiffs to invest in the instant fund, provided false explanations or false information on the credit of the instant vessel, the instant time charter, and the hybrid, and provided them to the Plaintiffs, thereby allowing the Plaintiffs to invest in the instant fund. Such Defendants’ act is jointly and severally violating the obligation to protect investors as an asset management company and a distributor of the indirect investment fund. The Defendants are liable to compensate for damages incurred by the Plaintiffs from their investments in the instant fund pursuant to Articles 19 and 61 of the former Indirect Investment Asset Management Business Act (amended by Act No. 7618, Jan. 30, 206; hereinafter “Indirect Investment Act”).

1) The instant ship is a ship classified as an IMO II/III-related bankruptcy administrator, not an IMOⅡ-related bankruptcy administrator, which can be transported without distinction from any kind of chemical substance. Nevertheless, the instant proposal and the amended proposal presented by the Defendants to the Plaintiffs are written as if the instant ship was a ship in the IMOⅡ-related bankruptcy administrator, and the Defendants also explained to the Plaintiffs.

2) The instant trust agreement was concluded after the second time charter contract was concluded between the Hanjin Shipping and Brazil, and both the instant proposal and the amended proposal were also prepared after the second time charter contract was concluded. Nevertheless, the Defendants prepared the instant proposal and the amended proposal under the premise that the first time charter contract between the Hanjin Shipping was valid without knowing that the instant time charter contract between the Jinjin and the second time charter contract was modified, or recommended the Plaintiffs to make an investment in the instant fund on the basis of the proposal and the amended proposal. In addition, the Defendants explained that the content of the instant time charter (the first time charter) was not clear as to whether the two-year fixed contract was concluded and whether the instant charter contract was concluded or not, as to the remaining four-year period (1+1+1) for which the hire was fixed and the three-year period for which the charterage changed was changed.

3) The Defendants provided false, exaggerated, or insufficient information about the credit or vessel operation capacity of Brazil, and provided false or exaggerated information about the expected sale price of the instant vessel, i.e., information on the instant vessel, namely, information on the vessel’s expected sale price.

B. Defendant 1 did not verify the authenticity of the instant time charter, and all of the practical process of creating the instant fund was required to take charge of Defendant SDR securities. Even after the establishment of the Fund, Defendant 1 Company: (a) was able to freely operate the instant vessel during the second time charter period and the subsequent period; (b) did not know that the instant vessel was deposited in the Fund’s account in the name of Hanjin Shipping; and (c) did not know the fact that the instant time charter was forged. In addition, the instant time charter was not sufficiently acquired, even after having become aware of the forgery of the instant time charter after due to the actual inspection of the said vessel, the instant vessel failed to take appropriate measures when the instant event occurred due to the failure of the institution twice and the unpaid oil payment; and (d) did not comply with the instant indirect investment prohibition provision or the instant indirect investment obligation under Article 86 subparag. 1 of the Act on the Establishment and Operation of the Fund.

3. Determination

A. As to the assertion that the Defendants provided false information regarding the instant fund

1) Legal principles on the duty to protect investors in indirect investment goods

A) For an asset management company:

Even in cases where an asset management company under the Indirect Investment Act does not directly take charge of the sales of beneficiary certificates by concluding a sales consignment agreement with a selling company, a truster and an operator of an investment trust is a party having a direct interest in the sale of beneficiary certificates, and reports to the Financial Supervisory Commission by enacting an investment trust agreement, making decisions and instructions on the investment and management of trust property in accordance with the terms and conditions of the agreement, and managing trust property as a good manager in accordance with Article 86(1) of the Indirect Investment Act, and protecting the interests of beneficiaries. As such, an investor has a duty of care to take into account and protect investors so that the investor can make a reasonable investment decision based on the relevant information by providing

Therefore, in light of the overall circumstances, such as the specific details of the transaction in question, the characteristics and risk level of investment trust properties, investors’ experience and ability to make investments, where an asset management company fails to take any measures with an indication that causes misunderstanding about investment targets, and where an investor provides wrong information that impedes the formation of accurate awareness about the risks associated with the transaction in question or the details of investment, the investor is liable to compensate for damages suffered by the investor by violating investor’s trust (see Supreme Court Decision 2004Da53197, Sept. 6, 2007).

However, since an asset management company of the indirect investment fund (private placement fund) has reduced the scope of its duty to provide information compared to the public offering fund (private placement fund) and its investors also require a more strict principle of self-responsibility. This is because the private placement fund is a fund formed by individual contracts between clients and investors and it can be deemed that the necessity to protect investors is less than that of the public offering fund. In the Indirect Investment Act, ① the public offering fund is subject to the listing (Articles 35 (3) and 45 (3)), ② the regulations on the preparation and provision of investment prospectus (Article 56), ③ the sales advertisement-related regulations (Article 59), ④ the regulations on asset management restriction (Article 88 (1) 2, 3, and 5), ⑤ the regulations on the public offering of knowledge and notice of base price (Article 96 (2)), ② the regulations on the disclosure and disclosure of investment statements (Article 100 and Article 101 (2) 4), and ② the regulations on the disclosure and disclosure of financial statements (Article 20 (10).2).2).

In light of the above, in determining whether an asset management company of the private equity fund has caused an impediment to an investor to form an accurate awareness of the risks or investment risks associated with the relevant transaction by providing false information to investors, it shall be determined on the basis of the principle of self-responsibility of the private equity fund by examining all the circumstances such as (i) how actively investors are misled; (ii) whether an investor was negligent in causing such misunderstanding; (iii) whether an investor was provided with additional information; (iv) whether an investor was given an opportunity to correct the misunderstanding by receiving such information; (iv) the time interval between the time when the relevant information was provided and the time when the investor was finally invested; and (v) the degree of investor’s trust to the asset management company of the private equity fund. It is reasonable to apply the principle of self-responsibility more strict than when determining investors of the public equity investment trust organization.

B) For a selling company:

The selling company provided for in the Indirect Investment Act is not merely an agent of an asset management company but also a position of recommending investors to make an investment in its own name and selling beneficiary certificates in the investor’s trading position. In soliciting investors to acquire beneficiary certificates for the sale of beneficiary certificates, the selling company must provide investors with an investment prospectus provided by the asset management company and explain its major contents. The selling company is obligated to comply with the terms and conditions of sales activities, such as the nature of indirect investment, the duty to not give sufficient and accurate notice of the terms and conditions of trust and investment risks, including the possibility of actual dividends and loss of principal, and the duty to not give sufficient and accurate notice of the investment prospectus (Articles 56(2) and 57(1) of the Indirect Investment Act). Therefore, the selling company is aware of the details of the investment prospectus provided by the asset management company, and the meaning of the investment prospectus is clearly understood by the asset management company with accurate explanation from the asset management company, and it can only be understood that it has an obligation to provide investors with accurate and balanced understanding of the management method of the investment trust or its profits and risks arising therefrom (see 2017.7).

In other words, the obligation to protect investors or the duty to explain borne by the selling company under the Indirect Investment Act is independent of the duty to protect investors of the asset management company, and the selling company also has the duty to deliver the profit and risk of its sales to investors accurately. Meanwhile, as seen above, the special circumstances of the private equity fund should also be considered about the case of the selling company. However, in the case of the private equity fund, there are many cases where the selling company actively recruits recruits investors from the fund creation process and provides information related to the fund in the process, it is reasonable to view that the selling company bears the same level of the asset management company, even in relation to the information provided during the fund creation process, according to the degree of participation in the fund creation.

2) Whether the Defendants provided information that could cause mistake or misunderstanding

Although the instant proposal, amendment proposal, etc. constitutes a private equity fund as seen above, even though they were not obligated to make investments in the instant fund pursuant to Article 56 of the Indirect Investment Act, as long as the Defendants drafted or recommended them to make investments in the instant fund, the Defendants should be deemed to bear the duty to protect investors as seen above with respect to the information stated in the instant proposal or amendment proposal, or the details explained to the Plaintiffs while providing such information. However, in light of the aforementioned legal principles, it is difficult to deem that the Defendants provided the Plaintiffs with erroneous information or explained to the Plaintiffs on the following grounds.

A) As to the type of the instant vessel (as to the vessel inspector), the type of the instant vessel

위에서 든 증거들에 의하면, ① 이 사건 제안서, 수정 제안서의 ‘∥. 환경분석 - 1. 시장 내부’란에서는 ‘아시아 지역 중형선 시장 전망[SUS(스테인리스 스틸 소재 선박을 의미한다), IMO Ⅱ, Major]'라고 기재되어 있고, ‘∥. 환경분석 - 1. 시장 외부’란에서는 ‘IMO Regulation 강화로 IMO Ⅲ Type 선박 점진적 퇴출, IMO Ⅱ type Needs 증가’라고 기재되었으며, 이 사건 수정 제안서 Q＆A 부분에서 ‘IMO regulation 강화로 케미컬탱커의 퇴출이 많아지고 있으나 공급량은 제한적이므로 동종 선박의 사용가치는 계속 높아질 것으로 보입니다’와 같이 기재된 사실, ② 소외 1은 2006. 8. 10. 원고 1 회사의 직원 소외 2에게 선박의 종류에 따라 실을 수 있는 수용화물이 나열된 메일을 보냈는데, 이 메일의 내용에서도 IMO Ⅱ type이 향후 대세로 이어질 전망이라는 취지로 언급한 사실 등은 인정된다.

Meanwhile, in full view of the testimony and arguments made by Non-Party 10 of Non-Party 4, evidence Nos. 5, and Non-Party 5 of the first instance trial, the instant vessel is 8,511t of total weight tonnage of the goods (units indicating the weight of the goods that can be loaded on the cargo) with IMO Ⅱ/Ⅲype, and 6,712.33 cubic meters of the center tank and 3,585 cubic meters of the size of 3,585 cubic meters. The Center tank ⅡⅡ Type, Cype and Cype are 1MO 3 Type and Cype of the center tank 80% or more of the share of the IMO 30% or more of the costs of the instant proposal, the vessel in question differs from the costs of the instant amendment, the vessel in question, depending on whether Non-Party 2 and Typepe, and all of the outlooks or data related to the instant proposal and the vessel Ⅲ Ⅱ TMy.

In addition to the contents of the instant proposal and the amended proposal, in full view of the fact that there is no explicit mentioning about the IMO Type of the instant ship, it is difficult to view that the Defendants explained the instant proposal and the amended proposal to the Plaintiffs solely on the basis of the analysis of the market situation of the instant proposal and the amended proposal, and the description of the mail, which is distinguished from the IMO II and the IMO III Type, sent by Nonparty 1 to Nonparty 2, and explained by Nonparty 1. This is because even if the instant ship is an IMO II/III Type, it cannot be ruled out that the instant proposal and the amended proposal were published in order to emphasize the advantages of this part.

Therefore, even though the contents of the instant proposal and amendment proposal and the content of the e-mail are only IMOⅡ/IIIpe, it is insufficient to deem that the Defendants informed the Plaintiff of the instant vessel to the Plaintiff as the ship in which the IMOⅡ-II was declared, and the evidence Nos. 15 and 28 cannot be trusted as it is. Accordingly, the Plaintiffs’ assertion on the different premise cannot be accepted even if it is no longer acceptable.

Although the Defendants actually explained the instant vessel to the IMO II Type, the actual benefit in distinguishing whether it is IMO II Type, IMO II/III is the difference between the value of charterage and the ship, and the purchase price of the vessel. However, as seen in the above basic facts, the Plaintiffs anticipated and anticipated to import charterage level pursuant to the first time charter that was concluded effective with respect to the instant vessel. As such, the Defendants provided false information about the type of the instant vessel, it is difficult to view that the Plaintiffs were misunderstandings in determining whether to invest in the Fund, or could not make a balanced determination based on the erroneous information. As seen earlier, the anticipated purchase price of the instant vessel stated in the instant proposal, etc. was included in the IMO II Type, IMO II/III, and third Type, and it was difficult for the Plaintiffs to find that the instant vessel was likely to sell the instant vessel at a higher price with respect to the instant TPP price, even if there were no other reasonable information on the sales price of the instant vessel. However, the Plaintiffs did not seem to have known that there was any error in the instant TPP price.

B) Regarding the time charter of this case

First, we examine the argument that the Defendants provided wrong information to the Plaintiffs without knowledge of such circumstances despite the change into the second time charter party. As seen above, the Fund’s revenue was generated through hire claims to be acquired from Hanjin Shipping according to the instant time charter party. The instant proposal and revised proposal were also indicated to the same effect, and Defendant SDR recommended the Plaintiffs to invest in the instant fund by explaining the contents of the instant time charter party. However, the facts were that Hanjin Shipping and Bred She concluded the second time charter party after changing the instant time charter party and did not notify the Defendants of the change and actively submitted the first time charter party to the effect of the first time charter party, on the premise that the first time charter party was valid, it was difficult to view that the Defendants were negligent in failing to inform the Defendants of the establishment of the instant obligation to protect the Defendants at the time of the conclusion of the time of the instant time charter party’s failure to inform the Defendants of the establishment of the first time charter party.

Next, we examine the assertion that the Defendants explained the information on the instant time charter period as a time charter with the two-year period in which charterage is fixed, and the three-year period in which charterage is changed, as to the total five-year period.

갑 제6호증의 1, 갑 제7호증의 1, 2의 각 기재에 의하면, 소외 3이 이 사건 재용선계약서를 위조한 후 피고들에 대하여 이 사건 신탁약정의 일부 조건 변경을 요구하자 피고 1 회사가 이러한 사정을 설명하고 원고들에게 이 사건 신탁약정의 일부 조건변경에 대하여 동의를 요청한 서면에서 이 사건 정기용선계약의 내용을 ‘용선계약서의 변경내용 : 잔존 3년 기간 동안 매년 용선료 변동계약’으로 표현하거나(갑 제6호증의 1), ‘○ 당초 TC계약 내용 1. 계약기간: 5년{2년 고정(＄10,500) + 3년 변동}’과 같이 기재(갑 제7호증의 1)한 사실은 인정된다.

However, as seen in the above basic facts, the instant amendment proposal and the revised proposal state as follows: “The first two-year unit renewal (three-year unit renewal)” as “the first two-year unit renewal (three-year unit renewal flow portion)”; as risk factors, “one-year unit renewal for three years after concluding the first two-year charter contract; and Refixing for three years after fixing the first two-year period for charterage (in the risk analysis, the portion related to charterage decline in charterage).” In addition, the revised proposal Form A state the same content as “If the charter party with Jinjin Shipping is not negotiated after two years?” In addition, according to the evidence No. 1-1, the number of employees of the Defendant Sc securities issued to Nonparty 1 was agreed on August 10, 200 to “the same effect as that of the instant charter party to the instant case,” and the price of the instant revised proposal will continue to have been agreed upon by 1 other parties to the instant charter party, but the latter would continue to have agreed on the same effect as the instant charter party’s.

Considering the contents of the instant proposal, amendment proposal, and e-mail against Nonparty 1’s non-party 2 as above, it is difficult to view that only some of the above documents (No. 6-1 and No. 7-1) sent by Defendant 1 to the Plaintiffs in order to partially change the contents of the instant re-charter agreement after the establishment of the instant fund, were sent by Defendant 1 to the Plaintiffs after the establishment of the instant fund, and were provided with the said documents (No. 6-1 and No. 7-1), and it is difficult to view that the Defendants explained the Plaintiffs on the terms of the instant time charter contract with five years, and that the latter three years were merely a contract with the risk of price fluctuation. Accordingly, the testimony by Nonparty 6 and Non-party 11 of the first instance trial witness is not believed, and there is no other evidence to acknowledge this differently

On the other hand, the plaintiffs also asserted that the contents of the revised proposal of this case, "if the charter contract with Hanjin Shipping is not negotiated since two years, it shall not be negotiated?" The above non-party 1's main text of the revised proposal of this case, and even if based on the non-party 1's above non-party 1's main text, the defendant Sk securities at the time have obstructed the decision of balance on the profits and risks of the fund of this case, which are investors, by presenting a conclusive positive prospect as to the possibility of concluding the charter contract with Hanjin Shipping in the future, the possibility of concluding the charter

위에서 든 증거들에 의하면 이 사건 수정제안서 Q＆A 내용 중 ‘2년 이후 한진해운과의 용선계약이 협상되지 않는다면?’ 부분에서는 ‘A: IMO regulation 강화로 케미컬탱커의 퇴출이 많아지고 있으나 공급량은 제한적이므로 동종 선박의 사용가치는 계속 높아질 것으로 보입니다. 특히 중동지역의 정유시설 증가와 중국 인도지역의 물동량 증가 추세로 SK 해운, 현대상선 등 대형 해운사의 동 선박 용선의사가 높은 상태이므로 용선되지 않은 가능성은 거의 없습니다.’라는 설명이 덧붙여진 사실, 위 소외 1의 메일에는 ‘데일리 100불만 낮추면 어떤 선사도 쓸 수 있습니다. 걱정마세요.. 현재도 이 배를 홍아해운 같은 B급 해운사로 가면 더 낳은 조건이겠죠...중략.. 선박이 쉰다는 우려는 기우입니다’와 같은 내용이 기재된 사실 등이 인정된다. 이러한 내용을 살펴보면, 당시 피고 에스케이증권이 이 사건 수정제안서에서 향후 브리지마린과 한진해운의 계약체결 가능성 혹은 브리지마린의 용선료 취득 전망, 용선계약체결 가능성에 대하여 긍정적인 전망을 제시하였음은 인정된다. 그러나 위 기초사실에서 보았거나 위 증거들에 의하여 인정되는 이 사건 제안서, 혹은 수정제안서 전체의 내용, 원고들은 모두 소위 ‘기관투자자’들로 이 사건 펀드 외에도 각종 금융상품 투자 경험이 있을 것으로 추인되는 점 등을 종합하면, 원고들로서는 피고들의 위와 같은 설명이 결국 피고들의 향후 선박 경기에 대한 예측에 근거한 것일 뿐이며, 향후 글로벌 경제 상황과 같은 여러 변수에 따라 다른 결과가 나타날 가능성이 있음을 잘 알거나 알 수 있었을 것으로 판단된다. 따라서 이 사건 수정제안서의 일부 내용, 소외 1의 메일의 내용이 위와 같다는 사정만으로 원고들이 브리지마린의 용선료 취득 전망, 용선계약체결 가능성에 대하여 오해를 하였다거나 균형 잡힌 판단을 할 수 없었다고 보기는 어렵다. 이 부분 원고들의 주장 또한 받아들일 수 없다.

C) Information on Brazil or luminous and vessel sales price-related

First of all, the plaintiffs asserted that, despite the fact that the credit rating, work experience, operation ability, etc. of Blore and Plore, the proposal, etc. in this case, etc. were important factors for investment judgment, they were false and exaggeratedly provided with the operation capacity, etc. of the vessels of No. 7, No. 7, and No. 7 and No. 7 as seen in the above basic facts. as seen in the above, Lloregg was a vessel whose registration vessel or Blore was chartered from No. 388, and the remainder of No. 7 and No. 7 are also hard to accept the defendants' assertion that the Defendants provided information on the revised proposal, other than the aforementioned revised proposal, since there was no dispute between the parties as to the fact that the vessel involved in Blore and Clore was a vessel and Clore, it is difficult to accept the defendants' assertion that the Defendants provided false information on this part of the proposal as well as the revised proposal.

Next, we examine the argument that the Defendants provided false information about the sales price of the vessel of this case. According to the above evidence, it is acknowledged that the amendment proposal of this case contains the same contents as “the securing of the lower demand price for small and medium sized Traker during the recent years’ price increase in the purchase and sale price of new and high sized Kaker” (this evidence No. 2-13, No. 4, and No. 12-1). However, according to the above evidence, even according to the above evidence, the above amendment proposal of this case, even based on the content itself, the analysis of the average trading price of the ship of this case, the new Kak price trend for the last five years, the depreciation rate, the expected decrease in the sale and purchase price of the ship of this case, and the calculation of the global average trading price of the Plaintiff 1k's vessel of this case's Kak as an agency of research and development, and the details of the search and sale price of the Plaintiff 1k's Kak's 3.

In full view of these facts, the defendants predicted the sale price of a ship and the possibility of drop thereof based on the objective statistical data that could have been collected at the time of the establishment of the fund of this case, and used a somewhat decent expression, such as the "security of below the sale price" as well as the "security of below the sale price," but appears to have been provided as information to the plaintiffs. In light of these circumstances, the plaintiffs also are confirmed to have sufficiently known or known of the outcome of the prediction of the pre-sale as well as to have been aware of what kind of data and the basis for the prediction, and it is also determined that the plaintiffs have been able to appropriately provided the data that can be determined by themselves as to how trust the outcome of the prediction.

In light of the above circumstances, even if the above prediction was unfolded due to the depression of shipbuilding and marine transportation industry, it is difficult to view that the Defendants provided the Plaintiffs with wrong information about the soft. This part of the Plaintiffs’ assertion cannot be accepted.

B. As to the assertion that Defendant 1 violated the duty of care, etc.

1) Fruits in the process of establishing the instant fund

As to the assertion that Defendant 1’s failure to know that the instant time charter was invalidated due to the change of the secondary time charter, was in violation of the fiduciary duty as the principal agent of the instant fund, it was determined that Defendant 1, as seen earlier, did not have known or could not have known that the instant time charter was invalidated due to Nonparty 3’s active deceptive act as the secondary time charter. Accordingly, the Plaintiffs’ assertion on this part cannot be accepted.

Then, Defendant 1’s claim that Defendant 1 violated the obligation not to entrust the business of the Fund under Article 176(1) of the Indirect Investment Act by entrusting the fund creation process of this case to Defendant SDR securities. The fact that Defendant 1’s employee Nonparty 1 planned and designed the fund of this case under the direction of Nonparty 1 does not conflict between the parties. However, Defendant 1 did not accept the allegation that Defendant 1 entrusted the fund of this case with the establishment of the Fund of this case on July 2006, after receiving the Br-type investment plan (Evidence A) from Defendant 1 to undergo the deliberation of the Committee for Selection of Goods, which is the internal organ of Defendant 1, after examining the possibility of the fund creation, etc., it decided to participate as the asset management company of the Fund of this case, and prepared the proposal of this case, etc., as well as the fact that Defendant 1 performed the procedure for establishing the Fund of this case. Thus, this part of the Plaintiffs’ assertion cannot be accepted.

2) Fruits in the fund management process of the instant case

A) First, the Plaintiffs asserted that Defendant 1 violated the duty of care by failing to directly verify the authenticity of the instant sub-charters at the time when the instant sub-charters were forged. However, as seen in the above basic facts, although the contract term of the instant sub-charters was stable changed, the instant sub-charters did not necessarily have been changed to the terms favorable to the sub-charters. Furthermore, even if the terms of the instant trust agreement changed upon the submission of the instant sub-charters, the adjustment of the reserves for the right to benefit of Class 3 is favorable to some sub-charters, but rather, it is difficult to view that Defendant 1 had a direct obligation to verify the authenticity of the sub-charters at the time when the instant sub-charters were not submitted through the actual inspection of the first time. In addition, considering the contents of the instant trust agreement changed upon the submission of the instant sub-charters at the time, it is difficult to view that Defendant 1 had a duty to normally and directly verify the existence of the terms of the instant sub-charters at the time immediately after the spread of the sub-charters.

B) In addition, Defendant 1 did not know that the instant vessel was being operated entirely differently from the revenue structure of the Fund, including, but not having known, that the instant vessel was readily aware of the fact that the instant vessel was operated by using sub-charters from Hanjin Shipping. In light of the fact that Defendant 1 was in the process of establishing the Fund, it was concluded earlier that Defendant 1 did not know or could not know whether the instant vessel was the secondary time charter between Brazil and Hanjin Shipping, or the sub-charters to the instant vessel. Furthermore, as seen above, as seen in the instant basic facts, it was difficult to view that the instant vessel was normally deposited in charterage from the Korea Agricultural Cooperative, which was the trustee, in accordance with the instant trust agreement and the management account of the Fund, and that it was difficult to view that Defendant 1 had the duty to manage charterage or supervise the instant vessel’s payment within the reasonable scope of the deposit money under the name of Defendant 1, the trustee or the instant trust account. Furthermore, it is difficult to view that Defendant 1 had the duty to verify the payment of charterage between the instant vessel and the trust account.

C) Next, even after the existence of the forgery of the instant sub-charter, the Plaintiffs asserted that Defendant 1 neglected to make efforts to secure charterage 7’s claim, such as not securing the shares of juk7 to be offered by Brazil by means of collateral transfer, and subsequently, the instant vessel failed to manage the vessel appropriately due to the occurrence of the failure of the two instances of engine or the delinquency in payment of oil, etc., and thus breached the duty of care.

However, as seen in the above basic facts, Defendant 1 Company is deemed to have properly dealt with the instant fund to secure charterage claim 7 by securing juk juk 7 juk juk juk juk juk juk juk juk juk juk juk juk juk juk, which was provided by Blok 209. Moreover, considering that the instant vessel had been placed on two occasions on September 30, 200 and January 30, 201, the instant vessel’s failure to operate the instant vessel was caused by the failure of the Plaintiff’s duty to operate the instant vessel by taking into account the following facts: Defendant 1 Company’s failure to comply with the vessel’s duty to operate the instant vessel by taking account of the vessel’s failure at the time of its navigation by Blok 2, 201 and the instant vessel’s failure to perform its duty to operate the instant vessel by taking account of the following facts: (i) the Defendants’ failure to perform its duty to operate the instant vessel by taking place on May 23, 23, 201.

4. Conclusion

Therefore, all of the plaintiffs' claims against the defendants are dismissed as it is without merit. Since the part against the defendants in the judgment of the court of first instance with different conclusions is unfair, the part against the defendants is revoked, and all of the plaintiffs' claims and appeals are dismissed. It is so decided as per Disposition.

[Attachment]

Judges Kim Jae-sik (Presiding Justice)