ELa District Damage Insurance Co., Ltd. (LLC, Kim & Lee LLC, Attorneys Noh Young-soo et al., Counsel for the defendant-appellant)

E.S. Securities Co., Ltd. (Attorneys Lee Ho-sung et al., Counsel for the plaintiff-appellant)

Busan Asset Management Co., Ltd. and one other (Law Firm Gyeongsung et al., Counsel for the plaintiff-appellant)

March 29, 2013

Seoul Central District Court Decision 2010Gahap121218 Decided February 9, 2012

1.The judgment of the first instance shall be modified as follows:

A. The plaintiff's main claim is dismissed.

B. Defendant SDR Co., Ltd and Defendant M&C Asset Management Co., Ltd. shall jointly and severally pay to the Plaintiff 2,702,855,237 won with 5% interest per annum from March 1, 2013 to April 19, 2013, and 20% interest per annum from April 20, 2013 to the date of full payment.

C. The Plaintiff’s remaining claims against Defendant SK Securities Co., Ltd. and Defendant U.S. Asset Management Co., Ltd. and the Defendant U.S. Industrial Bank of Korea are all dismissed.

2. The Plaintiff shall bear 70% of the total litigation costs incurred between the Plaintiff, Defendant SDR Co., Ltd., and Defendant U.S. Asset Management Co., Ltd., and 30% of the total litigation costs incurred between the Plaintiff and the Defendant Industrial Bank. The appeal costs between the Plaintiff

3. The monetary payment portion under paragraph (1) may be provisionally executed.

[Claim]

1. In the first place, Defendant SDR Co., Ltd. pays to the Plaintiff 10,00,000,000 won with 5% interest per annum from June 27, 2007 to February 14, 2011; and 20% interest per annum from the next day to the date of complete payment. 2. The Defendants jointly and severally paid to the Plaintiff 8,86,142,871 won and its interest per annum from March 19, 2013 to the date of final delivery of the application for change of claim and its interest per annum from the next day to March 19, 2013 to the date of complete payment (the Plaintiff’s claim was partially reduced).

【Purpose of Appeal】

1. Plaintiff: (a) the part against the Plaintiff in the judgment of the first instance is revoked; (b) as indicated in paragraph (1) of the same claim; (c) the Plaintiff primarily pays 3,852,127,750 won to the Plaintiff; and (d) the amount calculated at the rate of 9,630,319,373 won and 20% per annum to the date of full payment from the following day to January 29, 2012 to the date of full payment; and (e) the amount of money calculated at the rate of 9,630,319,373 won, jointly and severally with Defendant KS Securities Co., Ltd.; and (e) the Industrial Bank of Korea to the date of full payment.

2. Defendant SDR Co., Ltd.: The part against Defendant SDR Co., Ltd. in the judgment of the court of first instance is revoked, and the Plaintiff’s claim corresponding to that part is dismissed.

1. Basic facts

가. 소외 3이 대표이사이던 퍼스트쉽핑 주식회사(이하 ‘퍼스트쉽핑’이라 한다)는 2007. 5.경 특수목적법인(Special Purpose Company)인 ‘펫쳄 네비게이션 인코퍼레이션(Petchem Navigation Inc.)’ 명의로 선박 ‘Miri Cahaya호’(그 후 명칭이 ‘Golden Accord호’로 변경되었다. 이하 ’골든 어코드호‘라고 한다)’를 매수하기로 하는 계약을 체결하였는데, 그 매수자금을 조달하기 위하여 피고 에스케이증권 주식회사(이하 ‘피고 SK증권’이라 한다)의 당시 프로젝트금융팀 과장 소외 2에게 선박펀드 조성을 부탁하였다.

B. Accordingly, Defendant SK Securities: (a) collected investment funds from multiple investors in a type of investment trust under the former Indirect Investment Asset Management Business Act (repealed by Article 2 of the Addenda to the Financial Investment Services and Capital Markets Act, Act No. 8635, Aug. 3, 2007; hereinafter “the Pest Investment Act”); and (b) collected investment profits from the source of charterage revenues derived from the operation of a ship after providing the fund to Pesting with vessel purchase funds; (c) decided to create and sell a fund that is subject to investment in the loans provided to Pesting for vessel purchase; (d) Defendant SK Securities decided to create and sell a fund that is subject to investment in the loans provided to Pesting for vessel purchase; and (e) Defendant CK Asset Management Co., Ltd. (hereinafter “Defendant CK Asset Management”) participated in an asset management company, Defendant Industrial Bank of Korea was a trustee company; and (e) New Korea Bank (hereinafter “New Korea Bank”); and (e) new Korea Bank (hereinafter “New Korea Bank”).

다. 이에 따라 신한은행은 2007. 6. 20. 골든 어코드호 매수자금으로 선사인 펫쳄 네비게이션 인코퍼레이션에게 150억 원을 대출하여 선박매수자금으로 사용하도록 하였고, 피고 SK증권은 2007. 6. 21. 150억 원을 납입함으로써 펀드자금이 마련되자 수탁회사인 피고 중소기업은행이 같은 날 신한은행으로부터 위 대출채권을 양수받았다.

D. In addition, around June 2007, Defendant Busan Asset Management, an asset management company, prepared the management proposal of the “Industrial Complex Special Asset Investment Trust No. 1” (hereinafter “instant fund”) with the following contents as stated below, and Defendant SK Securities, the selling company, issued and explained the said management proposal to the Plaintiff and KDB Life Insurance Co., Ltd. (hereinafter “KB Life Insurance”), and recommended investment. Accordingly, the Plaintiff and KDB Life Insurance invested KRW 10 billion and KRW 5 billion in the instant fund on June 27, 2007.

본문내 포함된 표 ○ 상품 개요 - 상품유형 : 간접투자자산운용업법상의 특별자산펀드 - 설정금액 : 150억 원 - 만기 : 5년 2개월(2007. 6. 21. ~ 2012. 8. 27.) - 목표수익률 : 약 6.3% - 원리금상환 : 6개월 단위 원금분할상환 / 6개월 단위 이자 지급 ○ 투자자산 주요내용 - 투자자산 : 펫쳄 네비게이션 인코퍼레이션이 골든어코드호의 매입을 위해 대출받은 대출채권에 투자 - 대출채권 금리 : 6.75%(고정금리) - 대출채권 만기 : 2012. 8. 27.(90일 전 통보 후 전 기간 조기상환 가능) - 동 선박은 SPC가 선주로서 퍼스트쉽핑을 나용선사로 하는 나용선계약(BBCHP)을 체결, 퍼스트쉽핑은 현대상선을 정기용선사로 하는 정기용선계약을 체결하여, 현대상선이 퍼스트쉽핑에 지급하는 정기용선료를 투자수익원으로 함 - 정기용선계약 체결 : 5년간 $13,300/일로 현대상선과 정기 고정 용선계약 (이하 ‘이 사건 정기용선계약’이라 한다) - 주요 채권회수 방안 : 현대상선의 5년 장기 고정용선계약 체결 / 현대상선의 용선계약기간 내에 선박매입 또는 대체선사 약정 ○ 리스크 요인 및 처리방안 - 선박관련 위험 : 본 투자상품은 나용선료를 원리금상환재원으로 하고 있으며, 이에 따른 부담은 나용선사인 퍼스트쉽핑이 부담하는 구조이고, 퍼스트쉽핑은 정기용선계약에 의거 현대상선이 나용선계약을 승계하도록 되어있음

E. On the other hand, on May 29, 2007, Swiftships entered into a prior agreement on the charter of five years (a evidence 6, RECAP; hereinafter “prior agreement”) with Hyundai merchant Ship Co., Ltd. (hereinafter “NE”) on a five-year regular charter agreement with respect to the charter of a vessel (hereinafter “pre-charter agreement”). On the front of the prior agreement on May 30, 2007, Swiftships issued the prior agreement by Nonparty 3, a time charterer, succeeded to the duty of the PSA to the owner of a vessel by succeeding to the PSA agreement, or by inserting the vessel at a price higher than the obligation the PSA bears to the owner of a vessel, which the PSA bears with respect to the owner of the vessel, to the effect that the prior agreement was forged and issued to Nonparty 2, who forged the prior agreement (hereinafter “the prior agreement”).

F. After that, Swiftships operated fish code around September 2008 pursuant to the instant time charter (around 13, 2007, which was drafted by the regular contract) but Hyundai merchant vessel demanded the termination of the time charter on the ground of frequent weather, etc. Around September 2008, Hyundai merchant vessel demanded the termination of the time charter. On September 14, 2008, Swiftships agreed to the termination of the time charter, and the instant time charter was terminated around September 14, 2008. On the other hand, Swiftships was virtually insolvent on November 2008 and the instant time charter was terminated around that time. Although it continued to be operated by Defendant Mountain Ship Asset Management at the time of physical substitution, Defendant Mountain’s voluntary auction procedure was not commenced against the vessel obligee’s obligation to pay back to 20.5 billion won on the ground that it continued to be run by the world shipping de facto.

On the other hand, even after the sale of fish code Nos. 533, the lawsuit of demurrer against the distribution between the creditors and the defendant Industrial Bank of Korea was pending, and on December 26, 2012, the defendant Industrial Bank of Korea's assertion was accepted as a considerable portion of the claim of the defendant Industrial Bank of Korea, and the lawsuit of demurrer against distribution became final and conclusive (the defendant Industrial Bank of Korea won the entire lawsuit and the defendant Industrial Bank of Korea won some of the lawsuit with the World Shipping Company). The funds of this case were liquidated on February 27, 2013.

The Plaintiff received total amount of KRW 3,242,861,907, including the principal amount of KRW 400,000,000 on December 27, 2007; KRW 315,983,067; principal amount of KRW 630,000,000; amount of profit distribution; amount of KRW 303,344,441 on June 27, 2008; and amount of profit distribution on December 29, 2008; amount of KRW 256,891,145; amount of profit distribution on December 29, 2008; and amount of KRW 1,36,643,254 on February 28, 2013; and amount of KRW 3,242,861,907.

G. Meanwhile, Nonparty 2 became aware of the above Nonparty 3, who had worked in the Mineping Planning Team from around 2004, and Nonparty 3 established a sailing around November 2006. Nonparty 2 and Nonparty 3 successfuled in creating seven vessel funds, such as the attached Table, which set forth the bareboat charter company (attached Table 6) (in the case of H&C 1, the Habn L&C 1, the bareboat charter company newly established by Nonparty 3). However, all of the above funds were revealed that there was a problem such as forgery of a time charter contract. Nonparty 3 was sentenced to imprisonment for six years and six months (Seoul High Court Decision 201No2515) and one year and six months (Seoul High Court Decision 201No281, May 26, 2017), and one year and six months (Seoul High Court Decision 201No2781, May 26, 2017).

[Ground of Recognition] Facts without dispute, Gap evidence 1 through 3, 6, 7, 10, Gap evidence 15-1, 2, Gap evidence 20, Eul evidence 1-1 through 3, Eul evidence 23, 24, Eul evidence 7-1, 2, Eul evidence 7-2, and Eul evidence 46, 47, the purport of the whole pleadings, and the purport of the whole pleadings

2. Judgment as to the main claim

A. The plaintiff's assertion

The Fund was created by Defendant SK Securities’ investment in KRW 15 billion on June 21, 2007, and the Plaintiff thereafter purchased the beneficiary certificates of the Fund (hereinafter “the instant beneficiary certificates”) acquired from Defendant SK Securities on June 27, 2007, and invested in the Fund. In other words, the Plaintiff did not have made a conclusive declaration of intent to invest in the Fund before June 21, 2007, when the creation of the Fund was completed, and on the premise that the Fund was already established on June 27, 2007, the Fund purchased the instant beneficiary certificates from Defendant SK Securities on the premise that the Fund had already been established on June 27, 2007.

However, Defendant SK Securities, despite being aware of the forgery of the substitute ship agreement in the instant advance agreement, had the Plaintiff enticed and solicited the Plaintiff to purchase the instant beneficiary certificates, and the Plaintiff subjected to deception was believed to be able to make stable profits due to the instant substitute ship agreement and purchased the instant beneficiary certificates. Therefore, the Plaintiff entered into a sales contract with Defendant SK Securities due to deception of Defendant SK Securities or mistake in the important part concerning the profitability of the instant beneficiary certificates. Therefore, the Plaintiff was ordered to enter into the sales contract with the instant beneficiary certificates. Therefore, the said sales contract was revoked by delivery of the Defendant SK Securities of the duplicate of the purport of the claim and the application for change of cause as of December 15, 201. The cancellation of the sales contract is revoked. Defendant SK Securities is obligated to return the Plaintiff’s unjust enrichment equivalent to the purchase price of the instant beneficiary certificates paid by the Plaintiff to Defendant SK Securities.

B. Determination

1) As to whether the Plaintiff purchased the instant fund from Defendant SK Securities

The Plaintiff’s assertion is that the sales contract is revoked on the premise that the Plaintiff purchased the instant beneficiary certificates from Defendant SK Securities. Accordingly, the Plaintiff’s transfer of the instant beneficiary certificates to the Plaintiff is merely a “sale” as a selling company under the Simple Investment Act, and it cannot be deemed that the Plaintiff could cancel the Plaintiff’s acquisition of the instant beneficiary certificates in accordance with the legal principles as applied to the general sales contract. ② The Plaintiff and KDB life insurance actually acquired the instant beneficiary certificates at the same time as the establishment of the instant fund. However, the Plaintiff and KDB life insurance acquired the instant beneficiary certificates at the same time as the establishment of the instant fund. However, in order to secure the rights to vessel, such as purchase and registration of vessels abroad (for this period, the instant fund did not secure the right to vessel, and only contributed only to vessel sales) during the period necessary to secure the rights to vessel from abroad, and the Plaintiff’s acquisition of the instant beneficiary certificates on behalf of investors, such as the Plaintiff. Accordingly, the Plaintiff asserted that the Plaintiff merely acquired the instant beneficiary certificates from Defendant SK Securities, which was merely an acquisition of the instant beneficiary certificates through the process.

먼저 신한은행은 2007. 6. 20. 선박매수자금으로 선사인 펫쳄 네비게이션 인코퍼레이션(이하 ‘SPC’라 한다)에 150억 원을 대출하고, 피고 SK증권은 일단 2007. 6. 21. 150억 원을 납입하여 펀드자금을 마련하고, 피고 중소기업은행은 위 펀드자금으로 같은 날 신한은행으로부터 SPC에 대한 위 대출금채권(이하 ‘이 사건 대출금채권’이라 한다)을 양수받은 사실, 그 후 원고와 케이디비생명보험이 2007. 6. 27. 100억 원 및 50억 원을 이 사건 펀드에 각 투자한 사실은 앞서 보았고, 피고 SK증권이 이 사건 펀드로부터 위 150억 원을 회수하였음은 당사자들 사이에 다툼이 없다.

In addition, according to Gap evidence 11, Gap evidence 22, Eul evidence 23, and Eul evidence 31, and according to the internal documents approved for the sale of the fund of this case by holding the risk management committee on May 30, 2007, the following facts are stated (Evidence 11) as the "the total amount of ship fund acquisition KRW 15 billion, June 2007" (Evidence 11), ② the plaintiff's draft on June 26, 2007 (the internal documents prepared for the investment of the fund of this case), and the fact that the fund of this case was established on June 21, 2007 (Evidence 22); ③ The first establishment date of the fund of this case was June 21, 2007 (Evidence 23); and ③ the fact that the fund of this case was acquired from the new bank of this case from June 21, 2007 to June 23, 2007 (Evidence 636, etc.).

However, in light of the following reasons, it is difficult to view that Defendant SK Securities acquired the instant beneficiary certificates with the intent to own them and transferred them to the Plaintiff. Rather, considering the circumstances that the language code is a vessel of foreign nationality, the investors, the Plaintiff, as investors, and the Defendant SK Securities, in order to take the burden of acquiring funds without collateral during the period of time until investors secure the right to the ship after the disbursement of the vessel purchase fund, Defendant SK Securities first planned to take over the instant beneficiary certificates and take over them to investors, including the Plaintiff, etc. according to the scheduled procedures, and it is determined that Defendant SK Securities acquired the instant beneficiary certificates only for a certain period of time according to the scheduled procedures. Accordingly, it cannot be accepted even if the Plaintiff’s assertion on the premise that the legal relationship acquiring the instant beneficiary certificates from Defendant SK Securities is either a sales contract under the Investment Act or a legal relationship governed by the sales contract under the Civil Act, which is no longer accepted.

가) 갑 제2, 3호증, 을가 제30호증의 1, 2, 을가 제31호증의 각 기재에 의하면, ① 피고 SK증권과 피고 산은자산운용이 원고에게 제공한 이 사건 펀드 운영제안서에 이 사건 펀드의 운용기간이 ‘5년 2개월(2007. 6. 21.부터 2012. 8. 27.)’로 기재된 사실, ② 2007. 6. 18. 피고 SK증권 직원 소외 2가 케이디비생명보험에 제공한 현금흐름표에도 이 사건 펀드의 실질적인 기산점이 2007. 6. 27.로 기재된 사실, ③ 이 사건 펀드 신탁약관 제12조에 ‘이 투자신탁의 회계기간은 매 6개월로 한다. 다만 설정 후 최초 회계기간은 투자신탁의 설정일로부터 2007. 6. 26.까지로 하며, 신탁계약 해지시에는 투자신탁회계기간 초일부터 신탁계약의 해지일까지로 한다’고 기재된 사실, ④ 이 사건 대출금채권의 대출약정서에 첨부된 대출금 상환스케쥴에 이자상환기산일이 2007. 6. 27.로 기재된 사실 등이 인정된다.

In full view of these facts, the fund of this case was established from the time when the structure was designed to be established to June 21, 2007. However, from June 21, 2007 to June 26, 2007, the fund was planned to settle the accounts separately from the special account period, and it was confirmed that June 27, 2007 was the first first date of the occurrence of actual profits.

B) On June 27, 2007, the Plaintiff acquired KRW 1,000 per 1,000 (1,000 per the base price at the time of initial creation of the Fund, not the market value of the instant beneficiary certificates on that day. There is no dispute between the parties.

C) The Plaintiff’s draft statement (Evidence A No. 22) states the date of creation of the Fund as “ June 21, 2007,” but it is difficult to fully trust the description on the date of establishment, etc. of the said draft statement because the date of maturity of the Fund was indicated as “ September 21, 2012.” Furthermore, the two pages of the said draft statement and the following pages include the same contents as “the enforcement of the loan, the entry into force of the loan agreement, the entry into force of June 27, 2007,” and “the date of entry into force of the bareboat charter, June 27, 2007,” and such contents can be interpreted as the premise that the actual date of establishment of the Fund was the date of June 27, 2007. Moreover, the Plaintiff’s assertion that the date of commencement of the investment was the date on which the Plaintiff expressed its intention to make an investment in the instant draft was 60-27th of June 27, 2007.

D) According to the evidence Gap's evidence No. 11, it is recognized that the agenda for deliberation on the fund of this case was expressed as "case of office bonds and total underwriting of ship funds for ship financing" in the report on the result of the meeting of the risk management committee of defendant SK Securities held on May 31, 2007. However, it is difficult to view that the above "total acquisition" of the fund of this case was written in the column of the terms and conditions of acquiring the fund of this case as "as to be sold simultaneously with the creation of the fund", sales plan, and result column, and the review column of the risk management team at the end of the report of this case must be approved at the same time as the creation of the fund in consideration of the level of net capital of the party company at the time of the formation of the fund." Thus, it is difficult to view that the above "total acquisition" of this case was written in the meaning that Defendant SK securities actually acquire the beneficiary certificates of this case.

2) As to the assertion on exclusion period

Even if the legal relationship that the Plaintiff acquired the instant beneficiary certificates from Defendant SK Securities can be seen as a sales contract under the Civil Act, the revocation of the declaration of intent by deception or mistake, such as the Plaintiff’s assertion, should be made within three years from the date when the Plaintiff became aware of such revocation.

However, in full view of the statements in the evidence Nos. 34 and 36 and the overall purport of the testimony and arguments by Non-Party 1, the first instance court witness, as a whole, the following: (i) during the process of investigating the authenticity of the charter party agreement and the replacement agreement from Non-Party 3; (ii) on December 2, 2008, Hyundai Trasan sent e-mail to the effect that the contents of the substitute ship agreement were forged among the instant advance agreement on the asset management at the request of the asset management; and (iii) on December 3, 2008, the Plaintiff’s request for ratification of the substitute ship agreement from Non-Party 2, 2008, the Plaintiff’s employees of the Defendant SK Securities issued a thorough confirmation of the forgery of the charter party agreement and the substitute ship asset management agreement; and (iv) on December 8, 2010, the Plaintiff’s request for the replacement of the Plaintiff’s employees of Non-Party 2, 2010.

Therefore, on or after December 8, 2008, the Plaintiff requested an official answer as to the forgery of the substitute ship arrangement among the instant advance agreement with respect to Defendant SK Securities, and confirmed on or after December 10, 2008, that Nonparty 1, the Plaintiff’s practical agent, was forged of the instant substitute ship arrangement from the employee of the asset management company, it is assumed that at least before December 10, 2008, Nonparty 1, who was the Plaintiff, was aware of, or could have known that the instant substitute ship arrangement included the instant substitute ship agreement was forged.

If so, the plaintiff knew that there was a defect in the expression of intent to purchase the beneficiary certificates of this case from Defendant SK securities at that time, and the plaintiff's assertion of revocation made on December 15, 201, which was 3 years thereafter, cannot be accepted with the limitation period.

3) Sub-decisions

The plaintiff's primary claim cannot be accepted as a mother.

3. Judgment on the conjunctive claim

A. As to the tort liability under Articles 750 and 746 of the Civil Act of Defendant SK Securities

1) The plaintiff's assertion

Defendant SK Securities was merely a seller of the instant fund, but in substance, served as a manager of the instant fund. In particular, Nonparty 2 of Defendant SK Securities, who designed the structure of the instant fund, could have known that Nonparty 3 forged the instant prior agreement if he paid little attention to doing so. In other words, Nonparty 3 requested Nonparty 2 to create a ship fund on the premise that the instant time charter was not included in the substitute ship agreement at the time when Nonparty 3 requested Nonparty 2 to create the instant fund at the beginning. During the process of planning and establishing the instant fund, Nonparty 2 demanded Nonparty 3 to add a substitute ship agreement on the ground that it requires a more reliable security on the instant loan claim. This is because Nonparty 3 submitted the instant prior agreement that added the substitute ship agreement to Nonparty 2 and 30,000,000,000 to the instant loan agreement to which Nonparty 2 had received the request of Nonparty 2, and that it would be an increase in the number of regular charter contracts by adding it to the instant time charter agreement.

Therefore, although Nonparty 2 was able to know or know the forgery of the instant prior agreement by Nonparty 3, it is clear that the negligence by Nonparty 2 was facilitating Nonparty 3’s act of forging the instant prior agreement. Therefore, Defendant SK securities are the substantial manager of the instant fund creation, or as an employer of Nonparty 2, and as an employer of Nonparty 3, jointly with Nonparty 3, thereby causing damage to the Plaintiff by causing the Plaintiff to invest in the instant fund, and thus, the Plaintiff is liable for damages due to tort pursuant to Article 750 or 756 of the Civil Act against the Plaintiff.

2) Determination

A) According to Gap evidence Nos. 8, 12, and 13, Eul evidence Nos. 5, 6, 10, 18, and 19, the following facts are as follows: ① The non-party 3 appeared as a witness of the public prosecutorial investigation process and the criminal procedure related to each fund listed in the attached table, and promoted time charters that are not included in the substitute ship agreement at the time when the non-party 2 requested the creation of the fund of this case; and the non-party 2 demanded to conclude time charters that include the substitute ship agreement can be created only when the time charters are imminent at the time of the formation of the time charters of this case; ② The non-party 3 stated that the non-party 2 submitted the prior agreement of this case forged to the non-party 2 without any inevitable reason; ② the non-party 3 and the non-party 7 stated that the non-party 3 and the non-party 2 were also in charge of negotiations with the representative director of the fund of this case; and ③ the contents of the fund of this case were stated to the non-party 27.

Under the following order, I will proceed with vessels. CASH FLOW request. Line: 1990 BULT, TYPE: 190 BULT, CHPETTT: 14,000 tons (SU WTLD and equivalent vessels) : Line: 15,500,000 U.S. dollars : 5% of the vessel’s price; other expenses: US$600,000, LON PERD: 5, 2ALNS:30%, TCRE: 13,000

B) However, in full view of all the following circumstances, which were presented as the basis for finding the foundation of facts and evidence, Gap evidence Nos. 9, 16, 19, Eul evidence Nos. 9 through 17 (including various numbers), and Eul witness Nos. 3, witness Non-party Nos. 2, witness Non-party Nos. 2, and witness Nos. 2, and each testimony in the court of first instance, and the whole purport of oral arguments, which are acknowledged as the basis for finding the foundation of facts, it is difficult to believe that Non-party No. 3 and Non-party No. 3’s testimony in the investigation agency of Non-party No. 3 and Non-party No. 7 and some testimony of Non-party No. 3 of the court of first instance to the same purport were based on the premise that the non-party No. 2 was not aware of the forgery of the substitute agreement of this case, and that the non-party No. 3 did not accept the Plaintiff’s claim for assistance to the instant time charter.

(1) The fund of this case was established by Nonparty 3 as the third fund created along with Nonparty 2, and Nonparty 3 and Nonparty 2, immediately before the fund of this case was established, planned the fund of this case as shown in [Attachment 1 and 2] Korea as indicated in [Attachment 1 and 2]. Meanwhile, the time charters for the fund of this case were included in Korea, but it was difficult for Nonparty 3 to satisfy the various conditions required by Defendant SK securities at the time to make it difficult for Nonparty 3 to enter into the substitute ship clause, and it was accepted by Nonparty 2 (the evidence No. 6-1 and 6).

However, the terms and conditions of the Fund Nos. 1 and 2, each vessel’s age, vessel’s type, size, etc. are similar to the fish code (Evidence No. 11, No. 10). The Fund of this case began to have consultation on the terms and conditions since it had not been long after the creation of the Fund Nos. 1 and 2, and there seems to have been no other changes in the terms and conditions to create a vessel fund, such as market situation or the credit rating of slveging. Accordingly, it does not have any particular more favorable conditions to create a vessel fund compared to the slvebna, and No. 444, and thus, it is ratified that if the instant charter contract does not include any alternative ship arrangement, it could not be executed.

Luxembourg Ship Fund is a structure in which the principal and interest of the loan debt are repaid with the charterage of a ship during the fund management period. The maturity balance refers to the loan balance remaining without being repaid at the time when the ship fund becomes due. The maturity balance refers to the ratio of the loan balance compared to the loan principal, and in cases where other conditions, such as charterage, are the same as other conditions, the maturity balance ratio is lower than the loan interest rate, and the higher is higher than the loan interest rate (the loan interest rate is higher than the loan interest rate, and the interest that shall be repaid at the time of the maturity of the fund increases). Meanwhile, the loan interest rate is considerably affected depending on the credit rating of the loan, and the existence of a substitute shipbuilding agreement is the same as the provision of collateral for the loan claim, and the loan interest rate is lower if a substitute shipbuilding agreement exists, and the maturity balance ratio is lower accordingly.

However, in the case of this case, even at the early stage where discussions related to the creation of a ship fund, such as Nonparty 3’s statement, were held on the premise that there was no alternative ship company agreement, the maturity balance ratio (BALON) was 30% (Evidence 10). If an additional agreement was concluded upon Nonparty 2’s request from Nonparty 2, then the loan interest rate is lower and the maturity balance ratio is considerably lower than that of the loan. However, in fact, the maturity balance ratio fixed from the fund of this case is 33%, while the collateral called a substitute ship company was offered, it is difficult to easily understand it in light of the above loan interest rate and the maturity balance ratio. Accordingly, it is reasonable to view that Nonparty 3 was included in the time charter agreement from around 207 to May 21, 207 on the premise that the agreement was concluded on the establishment of the fund of this case.

As to this, the Plaintiff asserts that Nonparty 3 was not an expert on ship funds, and sent the note as above. However, according to the evidence Nos. 3 through 5 and No. 6-1 of the evidence No. 6, Nonparty 3 was engaged in the financial business related to the creation of ship funds from around 2004 before the establishment of a ship investment company. Nonparty 8 and Nonparty 8, a partner at the time of the establishment of a ship investment company, were to be in charge of the charter party business, Nonparty 3 was to be in charge of vessel financing-related business. Nonparty 7 degrees after the termination of the charter party business relationship with Nonparty 8, Nonparty 7 was in charge of the charter party business, Nonparty 3 was in charge of vessel financing-related business, and Nonparty 3 was in charge of vessel financing-related business, and Nonparty 3 could not accept the Plaintiff’s assertion that there was considerable change in the terms of vessel interest rate including changes in the vessel investment agreement.

On May 25, 2007, Nonparty 2 sent to Nonparty 5, an employee of Defendant SK Securities, a document explaining the structure, etc. of the Fund as “ship financing promotion (out of sale).” The document explains the profitability, structure, etc. of the Fund on the premise that the time charter contract of this case includes the substitution contract. Although the document is internal document of Defendant SK Securities, if Nonparty 2 was requested by Nonparty 3 to cause ship financing in the state of absence of the substitution contract in the time charter contract of this case, it would not be deemed that Nonparty 2 was able to prepare the above document and review it to other employees of Defendant SK Securities, as well as that there was no need to prepare the above document.

C) Even if the Plaintiff’s assertion that the joint tort under the Civil Act is established by Defendant SK Securities or Nonparty 2’s negligence, it cannot be deemed that there exists a causal relationship between the forgery of the instant substitute ship agreement and the damage incurred by the Plaintiff by investing in the Fund. The reasons are as follows.

(1) As seen earlier, the instant substitute vessel agreement provides that, in all cases where the bareboat charter agreement with the shipowner is terminated, the time charterer succeeds to the bareboat charter agreement, and that, by succession to the duty of the bareboat to the shipowner of the bareboat, the bareboat succeeds to the duty of the bareboat, or that the bareboat purchases the vessel at a price higher than that of the bareboat to the shipowner. Accordingly, the instant substitute vessel agreement serves as a guarantee for the termination of the bareboat charter agreement, namely, the security for the termination of the bareboat charter agreement.

Luxembourg However, the instant substitute ship agreement is included in the instant time charter, and its validity becomes void as a matter of course upon the termination of the time charter. In the instant case, prior to the termination of the time charter on September 14, 2008, the instant substitute ship agreement was null and void at that time. Meanwhile, there was no dispute between the parties that all obligations under the instant substitute ship agreement, such as the timely payment of charterage prior to the termination of the time charter, did not occur, even if the substitute ship agreement was valid, there was no possibility that there was no duty of modern charter ship under the substitute ship agreement.

On the other hand, the Plaintiff asserts that, with respect to the developments of the termination of the instant charter contract, if the substitute ship agreement was in force, it would not easily respond to the request for the cancellation of the instant charter contract, and Nonparty 3 would not have been able to cooperate with the modern merchant ship in order to prevent the forgery of the substitute ship agreement from being revealed. However, in light of the contents of the substitute ship agreement as seen earlier, the Plaintiff’s above assertion is difficult to accept. Rather, according to Nonparty 6’s testimony by the witness of the party instance trial, the slick was not operated in line with the slick required by the modern merchant ship due to frequent breakdown of the fish code. Ultimately, at the time, the modern merchant ship, which had been under the plan to reduce the vessel capacity due to the depression of the shipping market at the time, demanded the termination of the instant charter contract against the slickf, and it is acknowledged that the slick, as a large enterprise, could not refuse the said request as above, and that it responded to the request for termination of the instant charter contract.

Considering all these circumstances, even if the substitutional contract of this case was effective, it would not be possible to respond to the request for termination of the time charter of modern merchant vessels.

D) Sub-committee

Ultimately, this part of the assertion that the Plaintiff claims tort liability against Defendant SK Securities under the Civil Act cannot be seen as either a mother or acceptance.

B. As to the Defendants’ breach of their duty to protect investors

1) Relevant statutes and the terms and conditions of investment trust

Defendant SK Securities created the Fund as a kind of investment trust in accordance with the Simple Investment Act, and deemed that Defendant SK Securities participated in the Fund as an asset management company, Defendant CK Asset Management Company, the Industrial Bank of Korea as a trustee company, and the details of the provisions on the duty to protect investors of an asset management company, distribution company, and a trustee company under the Cross-Border Investment Act are as stated in the relevant Acts and subordinate statutes. In addition, according to each of the statements in No. 2 and No. 2-1, the terms and conditions of the Fund’s trust are as stated in the relevant Acts and subordinate statutes. The terms and conditions of the Fund’s trust are as follows: ① an asset management company: (i) the creation and termination of an investment trust; (ii) the asset management company, distribution company, and trustee company is liable to compensate for damages to beneficiaries if they cause damages to beneficiaries due to their acts in violation of the Acts and subordinate statutes, or neglecting their business (Article 7).

2) Occurrence of damages liability

A) Defendant M&C Asset Management

(1) The plaintiff's assertion

Defendant U.S. Asset Management did not confirm whether the instant substitute ship agreement was genuine at the fund creation stage, and provided investors with false information without knowing that the instant substitute ship agreement was forged. In addition, around December 2008, around the fund management process of the instant fund, Defendant U.S. violated the duty of care, such as not only did the instant substitute ship agreement with Nonparty 3, which should have been secured by the transfer of security, but also did not neglect to use the insurance money related to the instant substitute ship so that it would be useful.

Shed Judgment

㈎ 피고 산은자산운용과 피고 SK증권과의 관계

As to the plaintiff's argument, the actual manager of the Fund creation is Defendant SK Securities. The plaintiff decided to invest in the Fund upon the proposal of Defendant SK Securities, and Defendant MK Asset Management was selected as an asset manager after the plaintiff decided to invest in the Fund. Accordingly, if it was negligent in the process of establishing the Fund, it is only the cause of the cause for the establishment of the Fund, and it is not the responsibility for the asset management of Defendant MK. It appears to the purport that the Fund was planned by Nonparty 2 of Defendant SK Securities’s employee and its structure was designed, and that it was planned by the Fund, and that it was designed. Defendant MK Securities was not a dispute between the parties to the Fund before it became final and conclusive as the asset management company of the Fund.

However, prior to the Plaintiff’s participation of the Fund as an asset management company of the Fund (A evidence Nos. 3, B’s evidence Nos. 25 through 29, and A’s evidence Nos. 30-1 and 2), there is no evidence to acknowledge that the Plaintiff decided to invest in the Fund upon the solicitation of Defendant SK Securities in the Fund from June 18, 2007. Furthermore, even if the Plaintiff decided to invest in the Fund by consultation with Defendant SK Securities prior to the Plaintiff’s participation in the Fund, as long as the Plaintiff participated in the Fund’s asset management company of the Fund in the name of the Fund and carried out the business necessary for the creation of the Fund, it cannot be deemed that Defendant SK Asset Management is exempt from the duty of asset management under the Act on the Management of Investment and Assets. Accordingly, Defendant SK Asset Management cannot be viewed as being subject to the obligation of the Fund’s actual supervision or the obligation of the Fund’s asset management under the Act on the Management of Investment and Assets.

㈏ 이 사건 펀드 설정단계의 주의의무 위반

① According to the above evidence, Defendant C&C’s participation in the instant fund’s asset management company at the request of Defendant C&D, and prepared the instant fund’s management proposal (i.e., evidence A; hereinafter “instant proposal”) under its name after examining the profitability, etc. of the instant fund by reference to the documents, etc. received from Defendant C&D, and (ii) explaining the structure, profitability, etc. of the instant fund on the premise that the instant proposal includes the substitutional contract in the instant time charter. In full view of these facts, Defendant C&C’s asset management is confirmed to have prepared the instant proposal by deeming that it was genuine after obtaining the instant prior agreement, including the instant substitutional contract, from Defendant C&D, and completing the seal imprint’s seal imprint, and considering that it was accompanied by the corporate seal imprint certificate.

However, as seen earlier, the instant advance agreement, including the instant substitute ship agreement, was forged by Nonparty 3. Therefore, it is reasonable to view that the said act by Defendant Busan Asset Management was negligent in providing false information to the Plaintiff, an investor, by failing to properly verify the authenticity of the instant substitute ship agreement, which is the principal source of collecting the principal of and interest on the investment in the instant fund, which is the security of charterage claim, or by leaving it to the judgment of Defendant SK Securities.

On the other hand, Defendant 3 asserted that the content of time charter contracts and the authenticity of time charter contracts are practices in the industry. However, it is not sufficient to acknowledge it solely on the written evidence Nos. 3 and 31, and there is no other evidence to acknowledge it. Rather, according to the evidence No. 5, it is recognized that Nonparty 3 appeared as a witness of the relevant lawsuit and made a statement to the effect that the attorney-at-law, etc. of the law firm attended and signed in order to verify the authenticity, contents, etc. of the charter contract in other financial institutions. The above Defendant’s assertion in this part is unacceptable.

② In addition, Defendant Busan Asset Management was not required to confirm or require the periodical contract of the instant time charter. Even if the establishment of the prior contract only takes effect, it is determined that Defendant Busan Asset Management, an asset management company of the instant fund, has the duty to verify the detailed contents of the time charter by preparing the periodical contract of the time charter, which is the source of the instant fund’s charterage claim, in light of the fact that the instant fund’s principal source of revenue was derived from the instant fund, as stated earlier.

As to this, Defendant Busan Asset Management asserts to the purport that, in light of the fact that the fixed term contract of the time charter in this case was concluded after the establishment of the fund in this case was completed, and that, even if Nonparty 3 requested the fixed term contract of the time charter in this case, it is highly probable that Nonparty 3 would have forged it and submitted it, it is difficult to view that the Plaintiff suffered any loss due to the failure to submit the fixed term contract.

However, even if the fixed term contract of the time charter was concluded after the establishment of the instant fund, the possibility that Defendant Mountain Asset Management could have an opportunity to disclose the authenticity, etc. of the instant prior term contract in the course of demanding the submission of the fixed term contract of the instant time charter, cannot be ruled out. As such, Defendant Mountain Asset Management is not exempt from the obligation to accurately verify the terms of the time charter through the fixed term contract of the instant time charter as an asset management company, solely on the ground that Nonparty 3 could have forged the instant fixed term contract. The allegation on the asset management cannot be accepted.

③ Ultimately, in the process of establishing the instant fund, Defendant Busan Asset Management was found to have violated the duty of care and good faith as an asset management company of the instant fund, by confirming the authenticity of the instant alternative ship agreement only on the document, and without knowing the forgery of the instant prior agreement, notifying the Plaintiff of the false details about the risk and profitability of the instant fund, and by demanding the submission of the instant prior agreement on the instant time charter with respect to the spread of the information, etc., the instant prior agreement was forged.

㈐ 이 사건 펀드 운용과정의 주의의무위반

① First, the Plaintiff’s assertion that, around December 2008, Defendant U.S. Asset Management neglected the management of the management, supervision, and marketing’s regular charterage receipt accounts, the amount of insurance proceeds against vessel repair, etc., and that, around December 2008, Defendant U.S. Asset Management’s liability was reached KRW 9 billion, and was exposed to the seizure and auction risks of the vessel. The Plaintiff’s assertion that A.S. Asset Management misappropriated the amount of insurance proceeds from vessel repair.

According to Gap evidence No. 10, as a result of the defendant Mountain Asset Management’s verification from November 2008 to December 2, 2008 of the same year, it was found that the defendant Mountain Asset Management’s obligation related to the ship of Austria reaches KRW 9 billion and the insurance money related to the repair cost of the ship was not properly executed. Since November 2008, the defendant Mountain Asset Management was in a de facto state of bankruptcy from November 2008, and since that time, the defendant Mountain Asset Management operated the No. 199, but it was impossible to properly operate the No. 19 due to the seizure, etc. of the ship creditors, and eventually, the auction procedure regarding No. 19 was commenced.

However, it is difficult to view that an asset management company has a duty to manage or supervise the financial status or business status of the company solely on the ground that it is a debtor company of the fund.

여기에 앞서 본 것처럼 퍼스트쉽핑이 2007. 12. 27.과 2008. 6 27. 원래의 대출원리금 상환스케쥴 대로 상환해 온 사실(당사자 사이에 다툼이 없음), 을가 제40 내지 42호증의 각 기재에 의하면, 퍼스트쉽핑이 용선료 적립계좌에 용선료의 적립을 지체하기 시작한 것은 2008. 10. 20.경부터인데, 피고 산은자산운용은 2008. 11.경 당시 퍼스트쉽핑의 재무상태가 악화되었다는 소문에 따라 퍼스트쉽핑에 대한 재무상태 등을 점검하기 시작하여 산은 퍼스트쉽핑 3, 4호 펀드 및 이 사건 펀드의 정기용선계약 관련 조항이 위조된 사실을 밝혀내고, 2008. 12. 16. 이 사건 펀드에 관한 실사보고서인 갑 제10호증을 원고에게 발송한 사실을 더하여 보면, 피고 산은자산운용의 펀드 운용상의 과실로 퍼스트쉽핑의 재무상태가 악화되었다거나, 퍼스트쉽핑에 대한 관리, 감독의무를 게을리하였다고 보기는 어렵다.

② Meanwhile, the Plaintiff asserts that Defendant Mountain Asset Management was unable to respond appropriately to the circumstances after the bareboat Nos. 1 and 34 through 40 of the Fund. However, the Plaintiff did not point out any specific negligence in operating the instant fish code after the termination of a time charter contract. Moreover, according to the evidence mentioned above, the Plaintiff’s testimony of Nonparty 1 and Nonparty 6 of the trial witness, according to the fact that the bareboat Asset Management made efforts to reduce the damage of the Fund by using the substitute ship’s sign and operating a fish code, etc. on December 2, 2008, as the bareboat Asset Management was virtually unable to perform its obligations under the bareboat Contract, and the Plaintiff’s assertion that the bareboat Asset Management made efforts to pay the profits therefrom to the Plaintiff et al. in light of such circumstances.

【Court Decision】

Therefore, the Plaintiff’s assertion that Defendant Busan Asset Management was negligent in creating and managing the instant fund is that Defendant Busan Asset Management provided false information to the Plaintiff as it could not closely examine the authenticity of the instant prior agreement in the process of creating the instant fund, and that Defendant Busan Asset Management failed to confirm the instant time charter contract, which serves as the basis for collecting the principal debt of the instant fund, as an asset management company.

B) Defendant SK Securities

(i)The seller’s duty to protect investors under the Cross-State Investment Act

First, rather than in cases where a selling company plans and designs an investment fund, the company’s duty to protect investors is considered as the duty to protect investors of the selling company responsible for the sale of the fund designed and developed by the asset management company. As such, the selling company under the Telecommunication Act is not merely an agent of the asset management company, but is in the position of recommending investors to make an investment in its own name and sell beneficiary certificates. In such a case, the selling company, when soliciting investors to acquire beneficiary certificates for sale of beneficiary certificates, shall provide investors with the investment prospectus provided by the asset management company and explain its major contents, such as the act of indicating that investors may cause misunderstanding of important matters, and the duty to inform investors of the characteristics of indirect investment, such as performance dividends and possibility of loss of principal, and the duty to inform investors of the major contents of the terms and conditions of trust and investment prospectus (Articles 56(2) and 57(1) of the Telecommunication Act). Therefore, the seller is not sufficient to understand that the content of the investment prospectus provided by the asset management company is clearly and accurately explained from the asset management company and its content.

However, in light of the aforementioned facts before and after the creation of the Fund, the Plaintiff, an investor, as Defendant SK Securities, is presumed to have invested in the Fund by accumulating considerable trust as to the role and explanation in the process of creating the Fund in this case, as well as the role and explanation of Defendant SK Securities in the process of creating the Fund. Therefore, it is determined that Defendant SK Securities began to engage in the business of selling the Fund from the stage of establishing the Fund in this case. Considering the above circumstances and the fact that the selling company bears a separate duty of protecting investors separate from the asset management company, even if it is during the process of creating the Fund in this case, it is reasonable to interpret that the Plaintiff, an asset management company, bears the duty of protecting investors in this case, as it delivers information on the structure, profitability, risk, etc. of the Fund for selling the Fund in this case.

B. Violation of the duty to protect investors by Nonparty 2 in the course of establishing the Fund

On the other hand, according to the evidence mentioned above, ① Defendant SK Securities’s employee Nonparty 2: (a) examined only the formal circumstances, such as Nonparty 3’s seal impression affixed to the instant advance agreement submitted by Nonparty 3, and the certificate of seal impression attached; and (b) determined that the instant substitute agreement was authentic; and (c) Nonparty 2 recommended the Plaintiff to make an investment in the instant Fund while presenting the instant ship financing proposal on the premise that the instant advance agreement is genuine; and (d) Nonparty 2, other than the instant ship financing proposal, proposed the instant proposal to be selected as an asset management company of the Fund, but the instant proposal was also the same as the instant funds’ revenue structure; and (c) without Nonparty 2’s testimony, the instant substitute agreement did not play an important role in guaranteeing the credit rating of the witness, as it did not play an important role in the design of the instant fund (the instant substitute agreement).

In light of the aforementioned circumstances, the Plaintiff was able to know or have known the circumstances that the Plaintiff would make the investment of the Fund by reliance on the contents of the instant ship financial proposal provided by Defendant SK Securities (B) and the part on the instant substitute ship agreement, especially on important basic data to determine the profitability and risk of the Fund. Defendant SK Securities, which led in the process of establishing the Fund, trust in the contents of the instant ship financial proposal provided by the Plaintiff as above, and trust in determining whether to invest in the Fund. Accordingly, the Defendant SK Securities, which was subject to the instant ship financial proposal, has a duty to make the Plaintiff make a correct judgment on the grounds of its factual review on the authenticity of the instant substitute ship’s agreement, which is the core contents in determining the profitability and risk of the instant funds included in the instant ship financial proposal, and accordingly, offered it to the Plaintiff, an investor, based on this, on which the Plaintiff would be able to make a correct judgment. However, Nonparty 2, supra, who was in charge of this duty, did not have neglected the judgment on whether the instant advance seal impression was affixed, and whether Nonparty 2 and Nonparty 3’s investment risk.

Ultimately, Defendant SK Securities commenced business to sell the instant beneficiary certificates to the Plaintiff from the stage of establishing the Fund, and provided the Plaintiff, an investor, by neglecting his duties in the process, with erroneous information that the instant substitute agreement was genuine, and thereby causing loss to the Plaintiff by having the Plaintiff invest in the Fund. Accordingly, Defendant SK Securities jointly and severally with Defendant CK Asset Management, are liable for damages incurred by the Plaintiff by investing in the Fund.

【Court Decision】

This part of the Plaintiff’s assertion that Defendant SK Securities violated the duty to protect investors under the Simple Investment Act in the course of confirming the authenticity of the instant prior agreement.

C) Defendant Industrial Bank of Korea

(1) The plaintiff's assertion

The Defendant Industrial Bank of Korea, as a trustee company of the instant fund, was negligent in purchasing the instant loan claims from a new bank in accordance with the management instruction of the Fund Asset Management Act, on the part of failing to verify the forgery of the instant prior agreement or the details of time charters, and thereby causing damage to the Plaintiff by committing an act in violation of the liver Act or neglecting its duties.

Shed Judgment

The trustee company also confirms whether the management instruction of the asset management company is in violation of the Acts and subordinate statutes, the trust terms and conditions, the investment prospectus, and the Financial Supervisory Commission standards pursuant to Article 23(2)4 and Article 131(1), etc. (the detailed contents are the same as the contents of the relevant Acts and subordinate statutes), and if the violation is made, the trustee company is obligated to withdraw, change, or correct the management instruction.

However, according to the statements in the evidence Nos. 1, 2, and 3-1 through 3 of the evidence Nos. 1, 3-3, Defendant Industrial Bank of Korea, as the trustee company of the Fund of this case, acknowledged that the contents of the management instruction issued by Defendant Industrial Bank of Korea, as the trustee company of the Fund of this case, were to acquire the instant loan claims from the new bank and incorporate them into the Fund of this case. Meanwhile, Defendant Industrial Bank of Korea, as the trustee company, bears not only an obligation to examine whether the specific management instruction of the Fund of this case violates the statutes and the trust terms and conditions, but also cannot be deemed to have a duty of care to examine whether the instant prior agreement guaranteeing the claim for charterage, which is the revenue cause of the Fund, was forged, or to confirm the specific contents of the instant time charter contract. On this premise, the Plaintiff’s assertion against the Defendant Industrial Bank of Korea cannot be accepted

3) Scope of damages

A) Calculation of damages

Unless there are special circumstances, the amount of damages sustained by investors due to the violation of the duty to protect investors by an asset management company or a distributor pursuant to the Investment Act is the amount calculated by subtracting the total amount of money recovered or recoverable from the investment principal based on the beneficiary certificates acquired from the investment (see Supreme Court Decision 2012Da29649, Jan. 24, 2013).

Meanwhile, the Plaintiff invested KRW 10 billion in the instant fund, and 3,242,861,90,90,000,000 won, and 3,242,861,90,000 won was found to have been derived from the said basic facts. Therefore, the amount of damages incurred by the Plaintiff by investing in the instant fund is KRW 6,757,138,093 (=10,000,000 - - 3,242,861,90).

Furthermore, the Plaintiff asserts that, if the Plaintiff did not make an investment in the instant fund, the amount equivalent to the investment principal of the instant fund would have been invested in another financial product, thereby raising at least an amount equivalent to the Plaintiff’s average asset profit ratio, and thus, the amount calculated by the Plaintiff’s average asset profit ratio should also be included in the scope of compensation for damages, from June 27, 2007 to February 28, 2013, the liquidation of the investment principal of the instant fund was completed from June 28, 2013.

According to the evidence No. 21-1, No. 21-2, and No. 27-1, and No. 27-2, it is acknowledged that the average of the Plaintiff’s operating asset earnings publicly announced during the above period is 4.47% per annum. However, there is no evidence to deem that the Plaintiff invested in other financial instruments, etc. that the Plaintiff would have made an average of operating asset earnings if it did not invest in the Fund, or that it would have made an average of operating assets profits by investing in such financial instruments. Thus, the Plaintiff’s assertion in this part is rejected.

B) Limitation of liability

Meanwhile, as an institutional investor with professional knowledge and investment experience in operating insurance premiums and other assets as an insurer at various investment offices, the Plaintiff is deemed to have received individual information necessary for investment judgment, and determined and decided investment risks in light of its own investment experience and knowledge. Furthermore, the Fund requires a higher level of self-responsibility principle in light of the fund for the general public with private equity funds, and thus, it should pay more attention to investment losses and bear the responsibility for investment losses. Furthermore, Defendant SK Securities and Defendant M&C management also belong to Nonparty 3 as the Plaintiff, as in the end, as in light of the degree and manner of breach of duty of care, it is unreasonable in light of the good faith to have the above Defendants bear all responsibility for damages incurred by the Plaintiff in light of the degree and manner of breach of duty of care. In light of such circumstances and the fact that most of the vessels incurred due to shipping games after the establishment of the Fund were not forged, and thus, the Fund maintained its liability for losses from Defendant 40%, taking into account the fact that the Fund continued to be held liable for losses.

C) Sub-determination

Therefore, Defendant SK Securities and Defendant CK Asset Management are jointly and severally obligated to pay to the Plaintiff 2,702,85,237 won (6,757,138,093 won x 0.4, and less than won) and as the Plaintiff seeks, 5% per annum under the Civil Act from March 1, 2013 to April 19, 2013, which is the date of this sentencing, and 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from April 20, 2013 to the date of full payment.

4. Conclusion

Therefore, the plaintiff's main claim against the defendant SK securities is dismissed as it is without merit, and the plaintiff's main claim against the defendant SK securities and MK assets management is accepted only within the scope of the above recognition, and the remainder of the conjunctive claim against the above defendants and the conjunctive claim against the defendant Industrial Bank of Korea against the above defendant should be dismissed as it is without merit. Since the judgment of the court of first instance is unfair with some different conclusions, the plaintiff's main claim against the defendant MK securities is dismissed as it is so decided as per Disposition by the assent of all participating Justices on the appeal against the plaintiff's assets management and some appeals against the defendant SK securities

[Attachment Form 5]

Judges Kim Jae-sik (Presiding Justice)