201.com 40521 Damages (as referred to)

K non-life insurance Co., Ltd.

1. A glass Asset Management Company;

2. A modern securities company;

October 17, 2012

November 16, 2012

1. The Defendants shall pay to each Plaintiff 2,564,792,889 won with 5% interest per annum from February 22, 2011 to November 16, 2012, and 20% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims against the defendants are dismissed.

3. Of the costs of lawsuit, 2/3 is assessed against the Plaintiff, and the remainder is assessed against the Defendants.

4. Paragraph 1 can be provisionally executed.

The Defendants jointly and severally pay to the Plaintiff 8,869,669,507 won with 6% interest per annum from October 7, 2008 to the service date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of full payment.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the entire pleadings in Gap evidence 1 through 9, Gap evidence 13, 16, Eul evidence 1, 2, Eul evidence 8-1, 2, Eul evidence 10-1, 12, 13, and 14.

A. Status of the parties

(1) Defendant Free Asset Management Co., Ltd. (hereinafter referred to as “Defendant Free Asset Management Co., Ltd”) established for the purpose of asset management business of indirect investment fund, etc. and issued beneficiary certificates of the former Indirect Investment Asset Management Business Act (amended by Act No. 8635 of Aug. 3, 2007 and repealed by Article 2 of the Addenda to the Financial Investment Services and Capital Markets Act (hereinafter referred to as the “Indirect Investment Act”) as an asset management company, letter, and glass Special Investment Trust No. 1 (hereinafter referred to as the “Fund”).

(2) The Defendant Hyundai Securities Co., Ltd. (hereinafter “Defendant Hyundai Securities Co., Ltd”) is a selling company in charge of the sales of the instant convenience certificates according to the consignment sale contract with the Defendant Free Asset Management.

(3) The Plaintiff is an insurer under the Insurance Business Act, and is an investor who purchased the instant fund from Defendant Hyundai Securities.

(4) The Korea Exchange Bank (hereinafter “Korea Exchange Bank”) is a trustee company of the instant fund.

B. The structure of the Fund

The funds of this case are ① Special purpose corporations related to Co., Ltd. B (hereinafter referred to as “B”) (SPCs);

2 SPC purchases commercial papers (CP) issued by A limited liability company A (hereinafter referred to as SPC), the SPC (hereinafter referred to as "SPC"), and its model name: Prat and Whitne-7DD (S/N: 7096, 709619); hereinafter referred to as "this case's chemical engine"; hereinafter referred to as "aircraft B/SPC as a combination of the aircraft body and its engine engines, and its model name: Prat and Whitne-7D (S/N; hereinafter referred to as "the aircraft body of this case") and its engine (hereinafter referred to as "SPC") as security; 3. The aircraft rent of this case's aircraft and its engine were purchased as security; 1. The Aircraft B/SPC was supplied as an aircraft shop of this case; and 1. The Aircraft B/SPC was supplied as security; and 3. The Aircraft PC was supplied as an aircraft shop of this case's model.

C. The Plaintiff’s investment details and the details of investment proposal

(1) Around early 2008, Defendant Hyundai Securities’s employee G recommended investment to H, an employee of the Plaintiff, to introduce the Fund. Around March 3, 2008, the Plaintiff’s office visited the Plaintiff’s office to explain the structure, investment risk, and management plan of the Fund, and issued the Plaintiff the investment proposal (hereinafter “the first investment proposal”) with the following contents indicated. The Plaintiff did not indicate the asset management company on the cover of the first investment proposal.

[The First Investment Proposal of this case]

· Exculator

- The fund of this case purchases commercial papers issued by the relevant SPC, and SPC purchases a medium-sized aircraft and an engine engine of Spanish species C, provides as security, and redeems the principal and interest of bills with air fare income accrued from leasing and operating aircraft to F in Thailand.

- The maturity of the fund shall be 30 months, and shall be equal and equal once every three months from the first six months after the first establishment, and the rate of return of investors shall be 10% per annum.

- The sales of SPCs are expected to be KRW 104.3 billion, and 32.6 billion out of them shall become repayment resources.

- A structure designed to ensure stable sales by selling airline tickets through Hard-Block contract 1, and to ensure stability of profits by transferring expenses, such as oil, to consumers due to the application of oil agents, etc.

- In order to secure claims, the Fund will set up a collateral security right to aircraft / Aircraft insurance (15 billion won) / Security right to benefit from rental fee claims / Security right to benefit / Joint and several sureties of B and F and security right to benefit from loans, and security right to supplement funds.

· Fund structure drawings

- Thailand F is in fact related to domestic B.

- B Lending and holding an aircraft through SPC as the actual owner of the aircraft.

· Transfered Assets - Bills

- Conditions for issuance of commercial papers issued by SPC

8 billion won

-Financial Use: Purchase price for aircraft and Spanish engines

- Securing bonds

- Purchase aircraft and engine ownership as SPC, and the possession of disposal rights and the establishment of first priority collective security (including two engines)

- One Span engine may be made available at Lesse after the establishment of transfer security rights.

· Establishment of the right to purchase aircraft insurance and to receive insurance proceeds (the maximum amount of insurance coverage for damage to an aircraft out of the maximum amount of payment shall be 15 billion won);

- Pecuniary-Class 1 Pecuniary Trust Claim for Aircraft Rental Fee Claim in SPC

- Establishment of a pledge right to equity shares of SPC

Co-sureties B and F’s Joint sureties and Fund Supplementary Agreements

- Establishment of pledge rights in relevant accounts, such as B and F’s Fund Management Account

. Reservation of Interest Expenses for a grace period

- Establishment of modified Trust Asset Maintenance Line (Monthly 00 billion won)

- 63% of funds, such as necessary expenses, when it is anticipated that the repayment of principal and interest per three-month unit is insufficient.

· Referral of assets to be operated

- the appraised value of aircraft

A person shall be appointed.

- the appraised value of engines

A person shall be appointed.

· Risk factors and management schemes

- genuine transfers - Securing of requirements for setting up against claims from the F of Thailand

- Securing of the requisite for setting up against the law firm(s).

- Transfer by the Financial Manager (Korea Exchange Bank) to the F account of Thailand established in the Korea Exchange Bank after concentrating the collection account due to domestic sales as the Korea Exchange Bank and making out the lease fees in advance;

- Risk of the originator - Risk of failure to fully incur sales claims;

· Aircraft and engine security and disposal (SPC ownership)

· Establishment of revised trust assets maintenance lines

- Establishment of Triger Clause and monitoring of monthly sales trends;

- the originator’s avoidance of default risk as the originator establishes as SPC;

- Establishment of gas insurance amount to 15 billion won in case of the fall of aircraft and establishment of pledge rights to receive insurance proceeds

-credit risk - Risk not to recover sales claims in a timely manner;

- the establishment of an annual sales store and annual contract and down payment;

- Terms and conditions of advance payment of sales bonds 2 days prior to operation

- liquidity risk - Temporary financial shortages and non-existence of long-term structure

. Over the period of trust;

- Cash Supplement Agreements B and F

- Possibility for towing of other aircraft sales claims;

- dilution risk - Price discounts, etc.

· Establishment of a sufficient Buffer (see LTV)

· the determination of the contract with the total store and the fixed amount

· Application of Oil Smokings

-risk of mixing - Risk of the originator’s own assets and trust assets, risk of preventing the originator from separating and managing them, establishment and classification management of SPC per existing aircraft;

- Establishment of this Heal Account and separate management of a person entrusted with business and trust trustee;

- Centrality risk - Where the original debtor is a small number of persons, the impact of the credit rating of the underlying asset, the high-quality three plosers and the total number of stores may be selected, depending on the credit rating;

- Sller’s Maret

- structural risks - the risk of being unable to recover the loan due to the bankruptcy of the trade participants.

· In the case of the fall of aircraft, the purchase of gas insurance amount to 15 billion won and the establishment of a pledge to receive insurance proceeds.

- Establishment of aircraft ownership as SPC

- The bankruptcy of a selling bond obligor(GSA) shall operate after advance payment of air charges.

(2) On March 3, 2008, Defendant Hyundai Securities issued again to the Plaintiff the investment proposal of this case (hereinafter referred to as “the second investment proposal of this case”). The cover of the second investment proposal of this case was indicated as “H1 of the FF aircraft Special Asset Investment Trust H1” and the asset management company indicated as Defendant glass Asset Management. The content of the second investment proposal of this case was indicated as the same as the first investment proposal of this case, if it excludes the expected sales amount of SPC and the numerical value of repayment fund, etc. accordingly, the structure of the fund of this case, the investment risk and management scheme, and the appraised value of aircraft and engines.

(3) Meanwhile, the first and second investment proposals of this case stated that the size of commercial papers to be purchased from SPCs through the instant letter was the total of 18 billion won. However, as our Social Co., Ltd. (hereinafter “Korea Social Co., Ltd.”) decided to directly lend 9 billion won to SPC separate from the funds of this case, the fund of this case was promoted to purchase commercial papers worth KRW 9 billion.0 billion.

(4) On December 20, 2007, before Defendant Hyundai Securities solicited the Plaintiff to invest in the instant fund, SPC had already borrowed KRW 15 billion from KS Capital Co., Ltd. on or around December 27, 2007, and purchased the instant aircraft, etc. on or around 2007. The Plaintiff was scheduled to use the Plaintiff’s total amount of KRW 9 billion and KRW 18 billion to repay the said loan. The Defendant Hyundai Securities explained that the Plaintiff’s investment amount would be used as funds for purchase of the instant aircraft, etc. without explaining such circumstances at the time of issuing the first and second investment proposal to the Plaintiff, and that the Plaintiff’s investment amount would be used as funds for purchase of the instant aircraft, etc. after the issuance of the instant first and second investment proposal.

(5) On March 28, 2008, the Plaintiff prepared a review report on the following contents (hereinafter “the review report of this case”) and decided to invest in the Fund based on this.

【Examination Report of this case】

I. Outline of the Financing;

1. Outline of the fund;

This case is a structure fund in which the SPC, which is an air carrier, lends funds necessary for the purchase of high-class passenger aircraft and auxiliary engines for the Category C (SPC issue) and collects the loan and interest of the loan accruing from the lease and operation of aircraft to F in Thailand, its affiliated company, as trust property.

(a) Main contents;

A person shall be appointed.

(b) The fund structure;

- The F of Thailand is, in fact, a domestic affiliate.

B - The actual owner of the aircraft in question and the possession and lease of the aircraft through SPC;

2. Outline of purchase of corporate bills;

(a) Main contents;

A person shall be appointed.

A person shall be appointed.

5. RISD analysis

A person shall be appointed.

A person shall be appointed.

VI. Comprehensive Review Opinions

- The project is a financial structure fund in which the relevant SPC purchases used aircraft of Category C and lends, operates, and collects the principal and interest of the loan based on the underlying asset of the passenger transport fare sales claim arising in the future, from the purchase of the used aircraft of Category C to F of Thailand nationality as an affiliated company;

- It is determined that there is no difficulty in collecting the principal and interest of a loan in light of the establishment of a first-class right to benefit, provision of aircraft security, joint and several sureties and cash supplement arrangements of B and F, the personal solidarity of representative director I, the arrangement for prior coverage of the accounts administered by the Korea Exchange Bank, and the repayment of LTV 53% of the principal and interest of a loan compared to the sales claim of aircraft rental fees for 3 years. It aims to invest this case’s special asset investment fund up to nine billion won.

(d) Issuance, underwriting, etc. of bills;

(1) On December 20, 2007, SPC issued commercial papers between the Korea Exchange Bank on April 2, 2008 and the Defendant Free Asset Management, and the Korea Exchange Bank concluded a bill issuance and underwriting contract (hereinafter “issuance and underwriting contract of this case”) with the effect that SPC would accept the commercial papers in the position of the trustee company of the Fund in the position of the Fund in the position of the trustee company of the Fund in this case.

(2) The Plaintiff, from the Defendants, received all contracts related to the instant fund (hereinafter referred to as “the instant bill”). The Plaintiff also included the issuance and underwriting contract of the instant bill and the instant underwriting contract. The details of the instant bill issued and underwriting contract are as follows.

[Issuance and Acceptance of the Bill of this case]

Article 3 Use of Acceptance Price

SPC shall use the acquisition price only for the repayment of existing borrowings and for such purposes as may be designated by the underwriter. SPC shall fully assume all responsibility for any matters arising from the use by SPC for purposes other than those above.

Article VIEx Post Facto Conditions

SPC shall fulfill the following conditions after the date of issuance of the first bill:

6. SPC shall, in accordance with the laws and regulations of Korea or Thailand, set up a collateral security (the maximum amount of claims: 130 per cent of the total amount of the next acquisition price of each bond) within six months from the date on which the first bill is issued to Korea or Thailand, the Korea Exchange Bank and our social society with respect to the aircraft as joint collateral security.

7.SPC shall complete repair of this aircraft (including replacement of aircraft engines at a level prior to and approved by the operation of the Defendant glass) within six months from the date of issuance of the first bill, and deliver this aircraft to the lessee of this case.

8.SPC shall ensure that the lessee of this case shall commence the operation of this aircraft within six months from the date of its first issuance.

Article XISecurity

(3) SPC shall register the ownership of the Aircraft within six (6) months from the date of issuance of the first bill and have the first right to collateral security (130% of the total amount of each bond acquisition price: 130% of the total amount of each bond acquisition price) established with respect to the Aircraft and the first right to collateral security (130% of the total amount of each bond acquisition price) with joint collateral security holders.

E. Terms and Conditions of Trust of the Fund

The main contents of the terms and conditions of the instant trust agreement (hereinafter referred to as the “instant trust agreement”) are as follows.

【Trust Trust Terms of this case】

Article 7 (Responsibilities of Asset Management Company, etc.)

If an asset management company, trustee company, or distributor commits an act in violation of Acts and subordinate statutes, trust terms and conditions, or investment prospectus, or causes loss to beneficiaries due to negligence in performing its business, it shall be liable to compensate for such loss

Article 11 (Term of Trust Contract)

(1) The term of this investment trust shall be two years and seven months from the date of initial creation of the investment trust: Provided, That when the trust contract is terminated, it shall be from the date of initial creation of the investment trust until the date of termination

(2) Notwithstanding the provisions of paragraph (1), the trust contract term shall be from the first creation date of an investment trust to the date on which the bill under Article 36 (1) 1 incorporated into the investment trust property is fully repaid.

Article 36 (Investment Objects, etc.)

(1) Every asset management company shall manage the investment trust property by the following investment objects and investment methods:

1. Bills provided for in subparagraph 4 of Article 3 of the Enforcement Decree of the Indirect Investment Act;

Article 39 (Direction for Asset Management, etc.)

(1) In managing the investment trust property, an asset management company shall give instructions necessary for the acquisition, sale, etc. of assets to the trustee company, and the trustee company shall execute the acquisition, sale, etc. of assets according to the instructions of the asset management company: Provided, That in the following cases, the asset management company may directly execute the acquisition and sale of assets:

1. Trading of investment securities, etc.;

2. Short-term loans;

F. The process of managing the Fund

(1) SPC was established on December 14, 2007, prior to the Plaintiff’s investment in the instant fund, and on or around December 20, 2007, it had already purchased the instant aircraft, etc. around December 27, 2007, around KRW 15 billion borrowed from the KTF Capital Co., Ltd., Ltd., etc., and the remodeling and repair of the instant aircraft was scheduled to be performed by GAMFO, a Chinese repair company.

(2) The Plaintiff’s investment amounting to KRW 9 billion and KRW 9 billion loan of Korea-based social funds amounting to KRW 18 billion was deposited in the Korea Exchange Bank’s deposit account in the name of SPC on April 3, 2008, and on April 3, 2008, KRW 15 billion for the repayment of existing loans and KRW 15 billion for the payment of repair expenses for the Aircraft, etc. of this case

2,460,00,510 won was paid respectively, and in addition, the sum of KRW 17,895,375,510 was used by the financial advisory commission, legal advisory fee, etc. until April 10, 208.

(3) On May 16, 2008, Defendant Free Asset Management used USD 6,00,000 for the franchise, air electronic device, and various components purchase expenses, as to the progress of aircraft remodeling and repair, and received e-mail from F on September 1, 2008 with the content that KRW 2,00,000 should be added to the cost of maintaining C-C-Ck, and the scheduled date of commencement of operation was received on September 1, 2008.

(4) From the F on September 4, 2008, Defendant Free Asset Management: (a) had very wide and strict progress in shipping or customs clearance cars entering China due to the Berne Olympic Games; and (b) had a lot of time to take out various maintenance parts into the GAMF Improvement Center; and (c) in particular, the aircraft components are classified as dangerous items. In the case of dangerous goods, it was prohibited from directly shipping to China during the Olympic period; (d) it was difficult to proceed as the maintenance due to the delayed shipment of important parts; (e) the engine was found to have serious defects and the repair period was increased; and (e) the maintenance completion period was postponed around the end of August 2008, which was originally scheduled around November 2008.

(5) At the meeting held on October 17, 2008, when the employees in charge of Defendant Free Asset Management, our social finance, and the F’s representative director I gathered, and the F made it difficult for other aircraft of F to make an unstable political situation from September 6, 2008 to October 26, 2008, and management is serious. The F purchased aircraft, engines, and parts at KRW 18 billion, including the Fund’s funds, etc. at KRW 1.8 billion, such as aircraft, engines, and parts as the engine repair cost was required more than the initial estimate, and approximately KRW 2.5 million was used from USD 2.4 million as the repair of the Aircraft of this case was almost completed, and around November 2008, approximately KRW 1 billion was additionally required at delivery.

(6) From November 24, 2008 to December 26, 2008, Defendant Free Asset Management conducted a due diligence after visiting Magrole Synace (hereinafter “ESA”) under progress with the Chinese GAO, where the remodeling and repair of the Aircraft was conducted, to check the existence of the aircraft and engines, and the progress of remodeling and repair. As a result of the due diligence on the Aircraft, the existence of two engines of the Aircraft and the Aircraft were verified, but the two engines of the Aircraft were attached to other aircraft and were during operation. The remodeling and repair of the Aircraft was found to have been completed at 50% due to the failure to complete the remodeling and repair of the Aircraft from September 24, 2008 to September 26, 2008, the remaining remodeling and repair of the Aircraft was completed at 270% due to the failure to procure and repair the Aircraft from the end of 2008 to USD 37,000,000 as at the time of remodeling and repair.

(7) On August 30, 2010, the Defendant Free Asset Management sent to the Plaintiff and Defendant Hyundai Securities an official letter with respect to the depreciation of corporate bills issued by SPC (hereinafter “public letter”) as follows.

[Public Notice dated August 30, 2010]

5. Necessity to write off additional bills to be incorporated into the fund;

(d) Current status of holding assets; and

- The assets held by the Fund of this case are outstanding bills issued by SPC or outstanding seven consecutive times since January 209.

- The secured assets of the Promissory Notes can inferred the value of the Aircraft, which is the primary assets of the SPC, and the Spanish engine, incorporated into the value of the secured assets.

- The Aircraft of this case

· The aircraft vehicles of this case

- At present, the present Chinese MaECO factory is being mooring in the state of completion of repair, and two engines of this case are attached to the existing operator of the Incheon Airport 1, 2 units in operation of the existing operator at the Incheon Airport.

· It is impossible to calculate an appropriate fair value because the aircraft market is changing into a foreign-capital invested company due to the aggravation of the aviation market, and there is no contact with potential Buyer with the current secured aircraft.

In light of the amount of claims of the GAOO which greatly exceeds the value of the aircraft of this case due to USD 4,200,000,000 for unpaid repair costs of the F, the value of the aircraft of this case is currently being detained in the GAO.

It is not reasonable to assess the value.

- The notification of the initiation of legal procedures in the absence of prompt repayment of repair costs by the GAOO, and the possibility of loss of secured assets in the future.

· Two spare engines of this case

· During the seizure of Incheon Airport due to the relationship between 1, 2 and 3 of the use of each one without permission for each of the existing operators 1, 2, and 1,000.

· Although it is judged that the actual exercise of ownership is possible upon the conclusion of the legal dispute, it is not possible to calculate the reasonable fair value as in the case of the aircraft.

- The Spanish engine of this case

- Acceptance of Mesing ESA from Washington on July 28, 2009, receipt of a note of claim for ownership of 1,200 SPC, registration as a supplementary document at the time of registration of the aircraft of Thailand of Thailand of 1,209, around August 2009, and registration as a supplementary document, apart from ownership disputes, the amount claimed for repair costs of Washington ESA was significantly lowered, and value of assets being kept in custody due to USD 1,30,000,000 (as of June 2010).

- At present, on the premise of the joint implementation of the project with heading 1 and 2, there is a risk of loss of assets as in the case of increase in the amount claimed for repair costs of Washington ESA during the joint sale promotion or at the same time as in the aircraft body of this case.

- Presumption of Value of Covered Assets

The reasonable value presumption is not practicable due to the restriction on the exercise of ownership.

(e) Feasibility of the future project;

- In the present state, it would be difficult to carry out the SPC independent project without the subsidization of additional funds to secure the aircraft vehicles of this case.

6. Additional depreciation of bills to be incorporated into the fund;

(b) Appraisal of bonds, etc.;

- therefore 80% of the face value of the first bill

(8) On February 22, 2011, the Defendant Free Asset Management sent to the Plaintiff and Defendant Hyundai Securities an official letter with respect to the depreciation of corporate bills issued by SPC (hereinafter “public letter”) as follows.

[Public Notice dated February 22, 201]

6. Necessity to write off additional bills to be incorporated into the fund;

(a) The current status of holding assets;

- The Aircraft of this case

• The aircraft body of this case is being mooring in the state of completion of repair at the Chinese luminous GECO factory, and the engine 2 of this case is being attached to the existing business operator 1 and 2 in the Incheon Public Port and is likely to confiscate the Chinese customs due to the prolonged neglect in the Chinese Boban area.

(F) At least $180,000,000 in total of the unpaid repair costs, being detained by the GAMFO

· Two spare engines of this case

· During the seizure of Incheon Airport due to the claims relationship between 1, 2 and 2 of the use of each one without permission for the existing operator 1, 2, and 1.

The amount of claims related to the existing business operators in the court of February 16, 201, while the lawsuit for confirmation of the lien was in progress, but the amount of claims related to the existing business operators was denied in the court of second instance, but the lien due to the stop charge (13.5 billion won as of January 201) which is the claim of 1 and 2-owned SPC, which is the claim of 1 and 2-owned SPC, continues to be exercised at the Incheon National Aviation Corporation.

- The Spanish engine of this case

· At Washington ESA:

- Status of actual loss of ownership due to the exercise of lien by the aircraft vehicles in this case located overseas and by the GAOO and ESSA of one Spain engine;

- It is impossible to predict the progress of the project in the future with the consent of the Incheon International Airport Corporation, the lien holder of which is the project by utilizing the two engines of the instant body located in the Republic of Korea, and the lawsuit between the SPC and the Incheon International Airport Corporation, which are owned by the first and second units, is also prolonged at the time of the final appeal by the Supreme Court, making it impossible to utilize the assets

(c) Additional depreciation;

2) Appraisal of bonds, etc.

- The need to redeem the full amount of secured assets, taking into account the actual status of loss of ownership;

- however, 90% of the face value of the bill, taking into account the possibility of consultation with the lien holder of the secured asset and the need for sustainable management;

(9) Meanwhile, the Plaintiff recovered from Defendant Hyundai Securities KRW 224,115,113 on July 3, 2008, and KRW 226,575,256 on January 6, 2008.

G. The Plaintiff’s investment experience

On October 2007, the Plaintiff invested KRW 4.5 billion in the Investment Trust Special Asset Investment Trust No. 5 (hereinafter referred to as the “Ethical Fund”). The structure of the Fund was to purchase corporate papers issued by the Lone Star Limited Co., Ltd. related SPC, and was designed to lend the aircraft to F and operate it, thereby making the aircraft refunded to Lone Star Limited Co., Ltd. in order to refund the corporate bills with its flight fee revenue. As the said corporate bills were refinced and repaid early, the Plaintiff had experience in receiving investment returns from the Eth Fund.

2. The parties' assertion

A. The plaintiff's assertion

(1) Summary of the assertion that Defendant Free Asset Management violated fiduciary duty

(A) Although Defendant Free Asset Management was obligated to monitor, manage, and supervise the purchase cost of the aircraft, etc. of this case and the use of the repair cost as stated in the first and second investment proposal of this case, Defendant Free Asset Management violated the duty of care due to failure to perform this.

(B) Although the Defendant Free Asset Management has a duty to remodel and lease the instant aircraft after acquiring the instant aircraft, etc., to prepare a collection scheme for the instant fund by acquiring the security interest, etc., and to check and manage whether the fund is properly implemented, Defendant Free Asset Management failed to perform that scheme, and thus violated the fiduciary duty.

(C) The F used the two engines of the instant body on the two existing aircraft, respectively, which violated the duty of care to manage the congested risks so that the instant aircraft, etc. is not separated from F’s other property.

(2) Summary of the defendants' violation of the duty to explain

Defendant Hyundai Securities Company is a selling company of the instant fund as an investor of the asset management company and has a duty to clearly explain the risk of the instant fund to the Plaintiff, which is an investor, and protect the Plaintiff. However, as SPC did not explain investment risk, such as the risk that it could not be remodeled after acquiring the instant aircraft, etc., and the risk that the instant letter would not acquire the security right to the instant aircraft, etc., the Defendants violated its duty to explain. Furthermore, even though Defendant Hyundai Securities explained that the instant fund would be managed in accordance with the first and second investment proposal of the instant case, it did not agree with the Plaintiff as to whether to manage the instant fund in accordance with the instant first and second investment proposal. This is a violation of the duty to explain to the Plaintiff.

(3) Summary of the Plaintiff’s assertion of damages

As long as SPC and F do not have financial ability due to the actual discontinuance of business, and it is clear that the Fund is unable to acquire or collect and operate security rights to the Aircraft, etc., the occurrence of the Plaintiff’s loss is confirmed. The Plaintiff’s loss amount is appropriated first to the interest or delay damages from April 3, 2008, the date when the Plaintiff collected money from the Defendant’s Hyundai Securities from the Plaintiff’s 9 billion investment money, and the Plaintiff’s investment money is appropriated first to the interest or delay damages from April 3, 2008, and the remainder will be the remainder remaining after appropriating the money for the principal, the Defendant

B. The defendants' assertion

(1) Summary of the assertion regarding Defendant Free Asset Management’s breach of fiduciary duty

(A) The target of investment of the Fund is a bill of exchange, which is a debt securities, and Defendant Free Asset Management bears the fiduciary duty as to the act related to preventing the decline of the value of debt securities incorporated into the Fund or the maintenance of the possibility of recovery of claims. However, there is no authority to directly participate in the management of SPC, a corporation issuing bills, to manage and supervise SPC, and thus, it does not bear the fiduciary duty as to such act.

(B) As originally scheduled, Defendant Free Asset Management paid the instant fund to be used for the repayment and repair expenses of the existing loan. The details of the repair process and repair expenses were confirmed through our society, which is an executive secretary under the issuance of the instant bill and the underwriting contract. From November 24, 2008 to November 26, 2008, Defendant Free Asset Management faithfully performed the fiduciary duty.

(C) The initially increased cost was borne by B and F under the cash supplement agreement. In the event that customs clearance measures are strengthened due to the Olympic Games, and the repair cost was increased due to the unexpected increase, it was impossible to bear the increased repair cost due to the rapid aggravation of the financial resources of B and F due to the sudden aggravation of the political situation of Thailand, such as the closure of Thai Airport due to the collision between Thai-gun and the Demonstration Team, etc. In the event of the risks that could not have been entirely anticipated, Defendant Free Asset Management does not bear the duty of care.

(D) Since the acquisition of the security right to the instant aircraft, etc. by the Fund was scheduled to be carried out after both remodeling and repair of the instant aircraft, etc. were completed and delivered, insofar as remodeling and repair of the instant aircraft, etc. was not completed, even if the instant fund failed to acquire the security right, it does not constitute a violation of the duty of care of the Defendant Free Asset Management.

(E) The fact that it is possible to replace a mutual engine between F’s aircraft from time to time was already known to the Plaintiff as shown in the Plaintiff’s review report, which could have been sufficiently anticipated, and Defendant Free Asset Management was not obligated to prevent F from arbitrarily using the same body engine owned by SPC. Thus, even if the same engine was attached to F and used in another aircraft, the violation of Defendant Free Asset Management’s duty of care is not an issue.

(2) Summary of the claim regarding the violation of the duty to explain of Defendant Free Asset Management

(A) In the event that private equity investment securities, such as the instant fund, are sold, an insurer under the Insurance Business Act, such as the Plaintiff, is excluded from the application of the duty to explain under Article 56 of the Indirect Investment Act. Therefore, Defendant Free Asset Management does not bear the duty to explain to the Plaintiff.

(B) The Plaintiff is not only professional investors, but also has been experienced in investing in an undisclosed fund that is almost the same as the instant fund before investing in the instant fund, and the Plaintiff was scheduled to invest in the instant fund before the Defendant Free Asset Management was involved in the instant fund. As such, the Plaintiff decided to invest in the instant fund without seeking a proper explanation from Defendant Hyundai Securities.

(C) The fact that the Fund is a condition subsequent to the acquisition of the security right to the Aircraft, etc. of this case was planned from the time when the Defendant Free Asset Management was involved in the instant letter, and that the Fund provided as a security after the establishment of the first and second investment proposals of this case, and there was no obligation to explain the unexpected risks as long as the repair cost was increased due to the unexpected circumstances, such as the lack of political situation in Thailand, etc., and that it is possible to replace a mutual engine between the aircraft of this case, and thus, Defendant Free Asset Management did not violate the duty to explain.

(3) Summary of the assertion regarding the Defendant’s and Hyundai Securities’s violation of real name obligations

(A) In the event that private equity investment securities, such as the instant private investment fund, are sold, an insurer under the Insurance Business Act, such as the Plaintiff, is excluded from the application of the provision on the duty of explanation under Article 56 of the Indirect Investment Act. Therefore, Defendant Hyundai Securities does not bear the duty of explanation to the Plaintiff.

(B) The Plaintiff, who was experienced in investing in a similar fund as a professional investor, did not make an investment decision based on the instant 1 and 2 investment proposal.

(C) Whether Defendant Hyundai Securities violated the duty to explain should be determined on the basis of the relevant contract, such as the issuance of the Promissory Notes and the underwriting agreement, and this stated that the acquisition of security rights to the Aircraft, etc. of this case is a subsequent condition.

(D) The risk of an increase in repairing cost due to unexpected circumstances, such as the natural apprehension of Thailand, or the risk of a lien on the aircraft, etc. of this case, is not subject to the duty to explain, and this is not a problem that Defendant Hyundai Securities, the selling company, is not involved due to the occurrence of the fund management process.

(E) The Plaintiff did not make an investment decision in accordance with the instant 1 and 2 investment proposal, and as long as the Fund was not established in accordance with the instant 1 and 2 investment proposal, it cannot be deemed as a violation of the duty to explain even if Defendant Hyundai Securities did not agree to operate the instant 1 and 2 investment proposal in accordance with the details of the 1 and 2 investment proposal.

(4) Summary of other claims such as damages of Defendant Free Asset Management

(A) Even if the remodeling of the aircraft, etc. of this case was completed, the repayment of principal and interest of the PC was not made due to the suspension of operation, the reduction of travel, etc., taking into account the political instability of the Thailand. Therefore, there is no proximate causal relation between the Plaintiff’s damage and the non-operating situation within 6 months after the actual situation of this case.

(B) When the legal procedures, etc. of lien holders with respect to the aircraft, etc. of this case are completed, the Plaintiff is anticipated to be unable to recover part of the money invested in the Fund, but at the present stage, the occurrence of the loss was not determined.

(C) Even if the instant letter acquired the security right to the instant aircraft, etc. as originally scheduled, if realized, the Plaintiff would be entitled to only money corresponding to 1/2, excluding the portion of social funds excluding the portion of the lien, after deducting the secured debt from the proceeds from the sale of the instant aircraft, etc., so the Plaintiff’s losses should be limited to the said money.

3. Occurrence of liability for damages;

A. Liability for damages caused by breach of fiduciary duty of Defendant Free Asset Management

(1) The asset management company's duty of care

Article 86 (1) of the Indirect Investment Act imposes the duty of care and the duty of protection of investors by stipulating that the asset management company of investment trust shall manage the indirect investment property with the care of good managers and protect the interests of indirect investors. Article 19 (1) of the Act provides that the asset management company is liable to compensate for damages when it causes damages to indirect investors by violating the Acts and subordinate statutes and the terms and conditions of the investment trust or by neglecting its business.

(2) Violation of the duty of care and good faith of Defendant Free Asset Management

(A) First, we examine whether Defendant Free Asset Management violated the obligation to monitor, manage, and supervise the purchase cost of the instant aircraft, etc. and the use of the instant funds for repair costs.

Then, the Plaintiff asserted that the funds of this case were not used for the purchase cost of aircraft, etc., but there is no evidence to acknowledge it. Rather, SPC purchased the aircraft, etc. in the amount of 15 billion won that it had already been borrowed from Kti Capital Co., Ltd. prior to the Plaintiff’s investment of the Fund, and deposited the Plaintiff’s investment amount of KRW 9 billion and KRW 18 billion in the bank account in the name of SPC, and the 15 billion out of which was used to repay the above loan of KRW 15 billion. Accordingly, it can be evaluated that the funds of this case were used for the purchase cost of aircraft, etc. under the premise that the funds of this case were not used for the repair cost of aircraft, etc., and that there was no reason to acknowledge that the funds of this case were used for the repair cost of aircraft, etc. on the premise that the funds of this case were not used for the repair cost of aircraft, etc. on the premise that the funds of this case were not used for the repair cost of this case, and that there was no reason to recognize that the funds of this case’s were used for repair cost.

(B) Next, we examine whether Defendant Free Asset Management violated its duty to collect and check and manage the instant letter of funds.

In principle, investors shall bear risks accompanying the investment, and investors shall not expect to avoid all anticipated risks in the investment, even in the case of indirect investment, such as the fund of this case. However, investors who invest in a specific business such as aircraft operation business, such as the fund of this case where the occurrence of investment profits depends on the revenues of this business, as well as the risk of the business entity, are exposed to not only the risk itself, but also the risk of the business entity. Thus, the asset management company that establishes and operates such fund has the duty to protect investors by establishing a security right to collect funds at least in preparation for possible investment risks prior to soliciting investors, such as creating a security right, so that investors can recover their investments.

살피건대, 앞서 든 증거 등에 의하여 인정되는 다음과 같은 사정, 즉 ① 이 사건 편드의 투자수익은 SPC의 F에 대한 임대료 수의의 현금흐름에 연동되고, 위 임대료 수익은 결국 F의 항공료 수입에 의존하게 됨에도, 이 사건 펀드가 F에 직접 투자하지 않고, F와는 별도의 법인격을 갖는 SPC에 투자하는 한편, SPC가 이 사건 항공기 등의 소유권을 취득하게 하는 것은, F의 경영이 악화되어 임대료 수익의 현금흐름이 원활하지 않게 되는 경우에도 SPC가 이 사건 항공기 등을 처분하여 기업어음의 상환자금을 마련할 수 있게 하며, 이 사건 펀드의 투자자인 원고의 투자위험을 F의 위험으로부터 분리하고자 하는 데 그 주된 목적이 있는 것으로 볼 수 있는 점, ② B이나 F와 같이 소규모 항공사의 경우, 시장 상황이나 경기 변동에 따라 언제든지 경영이 악화되어 항공료 수입이 예상대로 발생하지 않아 자금난에 빠질 가능성이 항상 존재하는 점, ③ 따라서 피고 유리자산운용으로서는 B과 F에 대한 신용을 보강하거나 이 사건 펀드의 투자위험을 B과 F의 위험으로부터 분리함으로써 원고의 투자위험을 낮추는 방안을 마련할 필요가 있는 점, ④ 그런데, F의 수리비 미지급을 이유로, 이 사건 항공기 동체에 대해서는 GAMECO가, 이 사건 스페어 엔진에 대해서는 ESA가 각 유치권을 행사하고 있어, 이 사건 항공기 동체와 이 사건 스페어 엔진이 운항에 사용되지도 못하고 그 리모델링 과 수리가 중단된 상태로 있게 되었으며, 이로 인하여 원고는 이 사건 펀드에 투자한 자금을 회수하지 못하고 있는 점, ⑤ 한편, 당초 이 사건 항공기 동체와 이 사건 스페어 엔진의 리모델링과 수리 전 단계에서 피고 유리자산운용이 마련한 위험관리 방안은, SPC의 소유권 취득을 통한 처분권 보유 및 B과 F의 현금보충약정인 것으로 보이는 점, ⑥ SPC가 이 사건 항공기 등의 소유권을 취득하였는지는 분명하지 않으나, SPC가 그 소유권을 취득하였음을 전제로 한다 하더라도, GAMECO와 ESA가 F에 대한 체권을 담보로 이 사건 항공기 동체와 이 사건 스페어 엔진에 대해 각 유치권을 행사할 수 있었던 것은 그 리모델링과 수리 업무를 F가 담당하였기 때문으로 보이고, 결국 이로 인하여 SPC가 처분권을 행사하지 못하게 된 것으로 볼 수 있는 점, ⑦ 이 사건 펀드의 구조상 이 사건 항공기 등이 운항에 사용되기 전에는 SPC가 어떠한 수익도 창출할 수 없음에도, SPC의 자금 부족 위험에 대비하여 피고 유리자산운용이 마련한 방안은 B과 그 관계회사인 F의 현금보충약정뿐이고, 이는 결국 B과 F의 재정상태에 의존하는 방안에 불과하여, 이 사건 펀드의 투자위험이 B과 F의 신용위험으로부터 분리된 것으로 보기 어려운 점 등을 종합하여 보면, 피고 유리자산운용은, 이 사건 항공기 등의 관리를 F가 담당하기로 되어 있어 SPC가 그 소유권을 보유하더라도 그 처분권을 제대로 행사하지 못하게 될 수 있고, 나아가 이 사건 항공기 등이 운항에 사용되기 전에는 SPC가 수익을 창출할 수 없어 그 자금이 부족할 수 있으며, 그 부족한 자금의 보충을 B과 F에만 의존할 경우 F의 위함에 이 사건 펀드가 그대로 노출될 수 있음을 예상할 수 있었음에도, 위와 같은 위험에 대비하여 원고가 이 사건 펀드 자금을 회수할 수 있는 충분한 방안을 마련하지 아니함으로써 그 투자자보호의무를 위반한 것으로 봄이 상당하므로, 피고 유리자산운용은 이로 인하여 원고가 입은 손해를 배상할 의무가 있다.

As to this, Defendant Free Asset Management asserts that the target of investment in the Fund is a debt instrument, which is a bill of exchange, bears the fiduciary duty only with regard to preventing the decline of the value of the debt securities or maintaining the possibility of recovery of claims. Thus, the Korea Exchange Bank, a trustee company, takes over commercial papers issued by SPC in accordance with the management order of Defendant Free Asset Management. Article 36(1)1 of the Trust Terms and Conditions of this case also stipulates the subject of investment in the Fund as a bill of exchange. However, according to the evidence, etc. stated above, the Fund does not merely invest in existing commercial papers, but rather acquire aircraft, etc. of this case on the premise of establishing SPC and leasing it to F, and it is difficult to accept the corporate bills subject to investment in the Fund of this case as the source of revenue from the Fund, which is anticipated to redeem its principal and interest with the revenue from the Fund, and there is no possibility that it will be related to the act of protecting investors in this case from the establishment of SPC to the acquisition of aircraft, etc. of this case and its aircraft operation.

In addition, the defendant and free asset management asserted that the failure to pay repair expenses for the aircraft company of this case and the engine of this case constitutes a danger at which the political situation of Thailand could not have been anticipated, such as unstable political situation. Thus, in full view of the overall purport of arguments in Eul evidence 3-1, 2, 3, and Eul-1 through 4 of the evidence No. 9-1, it is acknowledged that the aircraft company of this case and the engine of this case were closed due to the collision between Thai-gun and Thai-gun at the time when the remodeling and repair of the aircraft company of this case was carried out, and that there is no room to see that the status of the operation of Thai-si and F would have deteriorated, separate from this situation, and that there is no room to see that there was a lack of room to see that the aforementioned measures could not be taken into account in the judgment of the plaintiff's free fund management, such as the removal of the investment risks of the defendant's investment company of this case, as seen earlier, as well as in the above decision of the lack of funds management policy of this case.

(C) Lastly, we examine whether Defendant Free Asset Management violated the duty of care to manage the risk of mixing in order to prevent the aircraft, etc. of this case from being separated from F’s other property.

In light of the above facts, if FF had arbitrarily attached two aircraft engines to other aircraft, and the court below's order to maintain the lien on two aircraft-related special purpose engines based on F's claim against F and other aircraft-related special purpose corporations; Defendant 2, 22, it is impossible to estimate the business using the same engine with the incidental consent of the Incheon Metropolitan City Mayor, and it is recognized as above that it would not be possible for the Plaintiff to use the aircraft-related business of this case to be used separately for any other aircraft-related business because of the prolonged merger between the above special purpose corporations and the Seoul Metropolitan City Mayor to prevent the Plaintiff from using the aircraft-related business of this case from being used for the purpose of repairing the aircraft-related business of this case. However, the court below held that the Aircraft-related business of this case could not be used for any other aircraft-related business of this case, including the Aircraft-related business of this case, because it could not be used for any other aircraft-related business of this case, and that the Aircraft-related business of this case could not be used for any other aircraft-related business of this case.

(3) Determination on the assertion of Defendant Free Asset Management

Defendant Free Asset Management asserts that there is no proximate causal link between the suspension of operation and the suspension of repair, and the Plaintiff’s damage, even if the remodeling and repair of the instant aircraft club and the instant Spain engine was completed. However, if the remodeling and repair have been completed, it is difficult to conclude that the principal and interest of the commercial paper has not been repaid due to the foregoing circumstances. Moreover, even if the FF’s aviation fee revenue was less or less anticipated than the Plaintiff’s aviation fee revenue due to the foregoing circumstances, it is difficult to accept the above assertion of Defendant Free Asset Management as long as it appears that SPC would be able to recover at least a part of the Plaintiff’s investment amount by exercising its right to dispose of the instant aircraft, etc.

B. Liability for damages caused by the Defendants’ breach of their duty of explanation

(1) The duty to explain the distribution company and the asset management company under the Indirect Investment Act

(A) A dealer stipulated under the Indirect Investment Act is not merely an agent of an asset management company in selling beneficiary certificates, but is in the position of recommending investors to make investments in the name of an investor and selling beneficiary certificates in the position of an investor. When such a dealer solicits customers to purchase beneficiary certificates, it has the duty of care to protect customers so that customers may make reasonable investment decisions based on such information by clearly explaining the characteristics and major contents of the relevant beneficiary certificates, including the risks associated with such investment. When a customer suffers loss to customers as a result of its breach of such duty of care, tort liability is established. In this case, the degree of explanation to the customer should be determined by comprehensively taking into account the characteristics and risk level of the pertinent beneficiary certificates, the investment experience and ability of the customer (see Supreme Court Decision 2009Da6437, Nov. 11, 2011).

(B) In a case where an asset management company prescribed by the Indirect Investment Act does not directly take charge of the sales of beneficiary certificates, it is not only interested in the sales of beneficiary certificates, but also has the actual condition and operator of an investment trust, who is in the position of producing and distributing information about an investment trust first. As such, such asset management company is obligated to protect investors and tort liability for such duty of care so that investors can make reasonable investment decisions based on such information by providing accurate information about the profit structure and risk factors of an investment trust to a distributor or an investor (see Supreme Court Decision 2010Da76368, Jul. 28, 2011).

(2) Whether the Defendants exempted from the duty to explain

The Defendants asserted that the obligation to explain is exempted in accordance with the provisions of the Indirect Investment Act. Thus, according to Article 56 of the Indirect Investment Act, an asset management company shall prepare an investment prospectus and provide it to a selling company after obtaining confirmation from a trustee company, the selling company shall provide the investment prospectus to investors, and the asset management company shall submit the investment prospectus to the Financial Services Commission before it provides the investment prospectus to the selling company. However, according to Article 175(1) of the Indirect Investment Act, Article 163(1)1 of the Enforcement Decree of the Indirect Investment Act, and Article 17-2(8) of the Enforcement Decree of the Corporate Tax Act, when an investor of a privately placed fund is an insurer under the Insurance Business Act, such as the Plaintiff, Article 56 of the Indirect Investment Act is not applicable. However, this is merely limited to the fact that an investor is exempted from the duty to explain and submit an investment prospectus to the Financial Services Commission in the case of a privately placed fund. As seen earlier, since the first and second investments in this case are actually used at the investment solicitation stage, it is difficult to accept the Defendants's's' assertion of the duty of explanation by the Defendants.

(3) Basic data on determining the Defendants’ breach of their duty to explain

The plaintiff asserts that the defendants' violation of the duty to explain should be determined based on the contents stated in the 1 and 2 investment proposal of this case. On the other hand, the defendants asserted that the defendants' violation of the duty to explain should be determined based on the Babb of the contract.

In addition, the Plaintiff received the instant proposal for the first and second investments from Defendant Hyundai Securities. In addition, the Plaintiff’s explanation about the Fund was made orally, and the date of preparation of the instant review report prepared by the Plaintiff for the purpose of making investment decisions was March 28, 2008. The Plaintiff’s date of preparation of the instant review report was March 28, 2008, and the date of preparation of the instant bill issuance and underwriting agreement included in the contract bableables issued by the Defendants from the Defendants.

In full view of these facts and evidence as seen earlier, the contract bables are only applicable to various contracts necessary for the actual condition and operation of the instant brid, and they are not drafted for the purpose of investment solicitation. In light of the date of the issuance and underwriting contract of this case, as long as the time when the contract bables were issued to the Plaintiff appears to be after the Plaintiff prepared the examination report of this case, it is difficult to deem that the Plaintiff affected the Plaintiff’s investment judgment, and thus, it is difficult to determine the Defendants’ violation of the duty to explain based on the contract bables. Meanwhile, insofar as the Plaintiff’s oral explanation from the Defendant Hyundai Securities cannot be deemed to include all the contents indicated in the first and second investment proposal of this case, it cannot be deemed that the contents explained to the Plaintiff are limited to the contents indicated in the first and second investment proposal of this case, but the Plaintiff did not appear to have determined whether they were dials based on the oral explanation of the investment proposal of this case and the Defendant Hyundai Securities, it appears that it constitutes the Defendants’ violation of the duty to explain and the report of this case.

(4) Defendants’ violation of their duty of explanation

피고 현대증권이 이 사건 제1, 2차 투자제안서에서 이 사건 펀드의 투자위험을, 진정한 양도(F로부터 채권 대항요건 확보 여부), 자산보유자위험(매출채권을 충분히 발생시키지 못할 위험, 부도 위험), 신용위험(적기에 매출채권이 회수되지 않을 위험), 유동성 위험(일시적인 자금 부족 및 기간구조 불일치 위험), 희석화위험(가격 할인 등으로 인한 기초자산 하락 위험), 혼장위험(자산보유자의 고유 자산과 신탁자산을 분리 · 관리하지 못하게 될 위험), 집중도위험(원채무자가 소수인 경우 신용도에 따라 기초자산의 신용도 영향), 구조적 위협(거래 여자의 파산과 연루되어 대출금을 회수하지 못할 위험)으로 구분하여 각 투자위험에 대비한 관리 방안이 마련되어 있다고 설명한 사실, 이 사건 심사보고서에도 그 분류에는 차이가 있으나, 거의 동일한 내용의 투자위험과 그에 대한 관리방안이 기재되어 있고, 다만 기체고장 위험에 대한 관리방안으로 엔진이 고장 나더라도 추가적인 엔진 구입 없이 즉시 엔진 교체가 가능하다고 기재되어 있는 사실은 앞서 인정한 바와 같으며, 이러한 사실과 앞서 든 증거 등에 의하여 인정되는 다음과 같은 사정, 즉 ① F가 이 사건 항공기 동체와 이 사건 스페어 엔진의 리모델링과 수리 업무를 담당함에 따라, SPC가 그 소유권을 취득했더라도, 그 처분권을 제대로 행사하지 못할 위험과 SPC의 임대료 수익이 발생하기 전 부족한 자금의 보충을 B과 F에만 의존하여 F의 위험에 이 사건 펀드가 그대로 노출될 위험 및 이 사건 동체 엔진이 F의 다른 항공기에 임의로 부착되어 사용되어 이 사건 펀드 자금의 회수를 위한 담보로서의 실효성을 상실할 위험이 존재하였고, 그러한 위험이 현실화됨으로써 원고가 이 사건 펀드 자금을 회수하지 못하게 된 것으로 보이는 점, ② 이 사건 제1, 2차 투자제안서와 이 사건 심사보고서에는 SPC가 이 사건 항공기 등의 소유권을 취득하여 처분권을 보유할 것이며, B과 F의 현금보충약정으로 SPC의 일시적인 자금 부족에 대비할 것이라는 내용만이 기재되어 있을 뿐, 그러한 관리방안만으로는 위와 같은 위험을 회피할 수 없다는 점은 언급되어 있지 않은 점, ③ 이 사건 제1, 2차 투자제안서 3면에는 'SPC는 C 기종의 중고 항공기와 스페어 엔진 1기를 구매하여 Remodeling 및 Upgrade한 후 담보로 제공하고'라고 기재되어 있기는 하나, 그러한 기재만으로는 그 리모델링과 수리 과정에시 SPC가 처분권을 행사할 수 없게 되거나 B과 F로부터 자금보충을 받지 못할 수 있고, 이 사건 동체 엔진이 다른 항공기에 부착되어 사용됨에 따라 담보로서 실효성을 상실할 위험이 있다는 점을 인식하기 어려울 것으로 보이는 점, ④ 원고가 보험업법에 의한 보험사업자이고, 전문투자자에 해당한다 하더라도, 피고들의 설명 없이는 위와 같은 위험이 존재한다는 점을 인지 하기 쉽지 않을 깃으로 보이며, 나아가 원고가 이 사건 펀드와 거의 유사한 구조의 피닉스 펀드에 투자한 경험이 있다 하더라도, 피닉스 펀드에서는 위와 같은 위험이 현실화되지 않았고, 피닉스 펀드에서 매입한 기업어음은 조기에 상환되었기 때문에, 피닉스 편드에서의 투자 경험만으로 위와 같은 위험이 존재한다는 점을 충분히 알 수 있었던 것으로 보기 힘든 점, ⑤ 피고 유리자산운용은 이 사건 제1, 2차 투자제안서의 작성에 관여하지 않았으며, 피고 유리자산운용이 이 사건 펀드 설정에 참여하기 전에 이미 피고 현대증권이 원고에게 피고 유리자산운용의 회사명이 기재되지 않은 이 사건 제1차 투자제안서를 교부하는 등 이 사건 펀드에 관한 설명을 일부 하였던 것으로 보이나, 피고 유리자산운용도 자산운용회사로서 투자자인 원고에게 올바른 정보를 제공함으로써 투자자를 보호할 의무를 부담하는 이상 판매회사인 피고 현대증권에 투자위험 등 투자판단에 영향을 줄 수 있는 정보를 제공하여 원고에게 설명하게 할 주의의무를 부담하는 것으로 볼 수 있고, 만일 피고 유리자산운용이 피고 현대증권에 위와 같은 정보를 제공하지 아니하였다면, 피고 현대증권의 설명 내용을 용인하고 그와 같이 설명하는 것에 묵시적으로 동의한 것으로 볼 수 있어, 피고 현대증권의 설명의무 위반이 인정되는 한 피고 유리자산운용도 함께 그 투자자보호의무를 위반한 것으로 봄이 상당하며, 피고 유리자산운용의 참여 이전에 먼저 피고 현대증권이 그 설명을 일부 하였다 하더라도, 이와 달리 보기 어려운 점 등을 종합하여 보면, 피고들은 이 사건 펀드의 투자위험이 충분히 관리 가능한 것처럼 이 사건 펀드의 위험요인을 설명하여 SPC가 그 처분권을 제대로 행사하지 못할 위험과 부족한 지금의 보충을 B과 F에만 의존하여 F의 위협에 이 사건 펀드가 그대로 노출될 위험에 관해 투자자인 원고에게 오해를 유발할 수 있는 정보를 제공하여 원고에게 이 사건 편드의 투자행위에 필연적으로 수반되는 위험성에 관한 올바른 인식형성을 방해함으로써 원고에 대한 보호의무를 위반하였고, 이에 따라 원고가 이 사건 펀드의 위와 같은 위험성을 정확하게 인식하지 못한 채 이 사건 펀드에 투자하게 되었으므로, 피고들은 위 설명의무 위반에 따른 공동의 불법행위로 인해 원고가 입은 손해를 배상할 의무가 있다.

4. Scope of liability for damages

A. The plaintiff's damages

Property damage caused by a tort is a difference between the property disadvantage incurred therefrom, i.e., the property condition that existed without a tort and the current property status. It includes active damages that lose existing benefits and passive damages that could not obtain profit from the future. Whether such damage actually occurred or not shall be determined reasonably in light of social norms (see Supreme Court Decision 2010Da76368, Jul. 28, 201). It is reasonable to deem that the damages suffered by the Plaintiff due to the Defendants’ violation of the duty to protect investors by investing in the Fund of this case were the amount obtained by subtracting the amount of investment partially recovered by the Plaintiff from the proceeds from the sale of the aircraft, etc. of this case, etc., as alleged in the Pakistan Free Asset Management Act, from the proceeds of sale of the aircraft, etc. of this case, which cannot

그런데, 이 사건 신탁약관 제11조 제1항이 이 샤건 펀드의 신탁계약기간을 최초설정일부터 2년 7개월간으로 한다고 규정하였음에도, 제2항이 이 사건 펀드의 신탁계약 기간을 기업어음이 전액 상환되는 날까지로 규정한 사실은 앞서 인정한 바와 같고, 이 사건 항공기 등에 대한 유치권자들의 법적 절차 등이 종료된 후 이 사건 항공기 등을 매각할 경우 일부 투자금을 회수할 가능성이 전혀 없는 것으로 보이지 않기는 하나 이 사건 신탁약관 제11조 제2항은 붛확정기한을 성한 것으로 보여 기업어음의 전액 상환이 불가능한 것으로 확정되었다면, 원고의 손해도 확정적으로 발생한 것으로 보아야 하며, 피고 유리자산운용 스스로 위 2년 7개월이 지난 후 2011. 2. 22. 원고와 피고 현대증권에 이 사건 항공기 등이 사실상 소유권 상실 상태여서 기업어음의 평가액을 액면금액의 99%로 상각한다는 내용의 공문을 보낸 사실은 앞서 안정한 바와 같고, 이 사건 변론 종결일인 2012. 10. 17.까지도 이 사건 항공기 등을 처분하였다거나 기업어음 일부가 상환된 것으로 보이지 않으므로, 이 사건 펀드는 늦어도 피고 유리자산운용이 기업어음의 99% 상각을 통보한 2011. 2. 22. 원고가 회수한 일부 투자금을 제외한 나머지 투자금은 회수할 수 없음이 확정된 것으로 봄이 상당하다.

Therefore, the Plaintiff’s specific amount of damages is KRW 8,549,309,631, which is the remainder of KRW 224,115,113 recovered from Defendant Hyundai Securities on July 3, 2008, and KRW 226,575,256 recovered on October 6, 2008, and KRW 8,549,309,631 as well as damages for delay from February 22, 201 (see, e.g., Supreme Court Decision 208, Apr. 3, 2008). Thus, the Defendants are obligated to pay the Plaintiff’s principal and damages for delay from February 22, 2011 to KRW 208 (see, e.g., Supreme Court Decision 200, Apr. 27, 2008; 208.). The Plaintiff’s remaining amount of damages for delay due to the Plaintiff’s unlawful act should be appropriated from the point of time to time of redemption for damages.

B. Limitation on liability

However, in light of all the circumstances indicated in the instant case, the Plaintiff, an investor, should bear the investment risks accompanying the instant fund in principle, and the Fund is a fund pursuing a high yield of 10% per annum, and there is no choice but to have a high investment risk. The Plaintiff is an insurer under the Insurance Business Act, as an insurer under the Insurance Business Act, and the Plaintiff’s experience in investing in an undisclosed fund similar to the instant fund is deemed to have the experience and professional ability to recognize the investment risk of the instant fund. Even if Defendant glass Asset Management plans to collect sufficient funds, the instant letter is designed to depend on the revenues of the fund, and it is difficult to conclude that the instant letter is able to recover all the investment risks. Even if the instant aircraft, etc. is disposed of, it is difficult to conclude that the amount would vary depending on the aircraft market situation, and the Plaintiff’s damage suffered by the Plaintiff is also an unstable situation, other than the Defendants’ violation of the duty to protect investors, the amount of damages suffered by the Plaintiff shall be limited to 30% of the fair damages suffered by the Plaintiff.

C. Sub-committee

Therefore, the Defendants are obligated to pay to each of the Plaintiff damages for delay calculated at the rate of 2,564,792,889 won (the foregoing KRW 8,549,309,631 won x less than KRW 30%) and damages for delay calculated at the rate of 5% per annum under the Civil Act until November 16, 2012, which is the date of the adjudication of this case where it is reasonable for the Defendants to dispute the existence or scope of their obligations to pay from February 22, 2011 (the foregoing KRW 8,549,309,631 won x below KRW 30%) and the damages for delay calculated at the rate of 6% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings until the date of full payment (the Plaintiff is liable for damages for delay calculated at the rate of 6% per annum under the Commercial Act, but the commercial statutory interest rate under Article 54 of the Commercial Act applies to damages for tort not arising from commercial activities (see the Plaintiff’s’s’s’s assertion over 8496%).

5. Conclusion

Therefore, the plaintiff's claim of this case against the defendants is accepted within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

Judge Seo-won of the presiding judge

Judges Cho Jae-jin

Judges Lee Il-il

1) The airline is a method by which the travelr allocates seats in advance to the travelr and the travelr pays the seat fare fixed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.