2017Gohap96 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

A

Park Jong-sat (prosecution), public leather, and joint ventures (public trial)

Law Firm B (Attorney in charge C, D)

February 9, 2018

The defendant shall be innocent.

1. Summary of the facts charged

The defendant is a person who has worked as the representative director of F Co., Ltd. located in Jongno-gu Seoul Metropolitan Government E building 1815.

On June 2008, the Defendant: (a) established a plan to purchase Indonesian shipment 8700t ship; and (b) paid 1.6 million won as ship purchase deposit; and (c) was promoting a loan for the remainder payment; (b) was trying to acquire money in the name of the ship fee by deceiving the Victim G Co., Ltd. due to the shortage of company operation funds.

Around August 5, 2008, the Defendant, at the above F Office, made a false statement to the effect that “The Defendant paid a down payment to purchase a ship from our company, and the bank loan was almost completed, would promptly pay the remainder and purchase the ship. When purchasing a ship in the future, the Defendant would have changed the hire for a period of 60-day time charter for five years.”

However, at the time, it was difficult to lend a financial institution to pay a balance to a ship, and intended to pay a balance by creating a ship fund, but the Defendant was in the absence of investors, and the Defendant was in the absence of the ability to purchase the ship by paying the balance normally due to the absence of particular assets.

As such, the Defendant, by deceiving the victim company, received from the victim company the money of KRW 891,064,30 from the victim company to a new bank account in the name of F Co., Ltd. for the same day charterage.

2. Determination

A. The issues of the instant case

The facts charged of this case revealed that it was difficult for the Defendant to borrow a financial institution to pay the remainder of the ship at the time, and attempted to pay the balance by creating a ship fund, but this was no longer accrued when there was no investor, and the Defendant was not capable of purchasing the ship by paying the balance normally due to the absence of particular assets. However, as if the loan was completed, the Defendant received approximately KRW 8,90 million from G, which believed that he would be able to purchase the ship by deceiving the company G (hereinafter “G”) as if the loan was completed.

In this regard, the defendant and his defense counsel received a report from the employees of the FF Co., Ltd. (hereinafter "F") on the fact that almost all the procedures for the remainder loan through a ship fund were completed, and that the remainder loan through the ship fund will be carried out immediately, and they stated to the effect that "the remainder loan through the ship fund will be carried out immediately," and they received charterage and oil set forth in the charter contract from G employees, and they do not deceiving G to the effect that the remainder loan through the ship fund was not carried out."

Therefore, the key issue of the instant case is whether the Defendant was aware of the fact that there was no balance loan through the ship fund before receiving charterage and oil for G employee H.

B. Determination

1) Facts of recognition

According to the evidence duly adopted and examined by this Court, the following facts are recognized.

A) On April 10, 2006, F (Representative Director) engaged in the business of loading cargo to another ship or transporting cargo upon entering into a charter contract with another ship company established for the purpose of the business, such as the combined freight forwarding business, the ocean freight forwarding business, etc. The employee in charge of F’s finance around 2008 was the son of the defendant’s external company (Evidence Record 757, 1313, witness I, 1, 3, 1, 3, 1), G was the son of G around 208 as a company established for the purpose of the business, such as cargo handling business, and marine transportation business (Evidence Record 45, 345, 11, 33). The J and the Irregular Team leader was H (Evidence Record 45, 345, 11, 33).

B) The Defendant and H had worked at the same affiliate company (K and L) for three years prior to 2006, and F and G continued to engage in transactions, including entering into a long-term and short-term charter contract from November 2006 to December 12, 2006 (Evidence Records 89,90, 115, 754, 756, 758).

C) From December 2007, FF entrusted the inspection line (Survey) to a large number of vessels from around December 2007 (Evidence 3-1, 2, 3), and around May 8, 2008, F entrusted the inspection line to NN (hereinafter “the instant vessel”) owned by “M” (hereinafter “M”) from the Japanese Hochoma, and completed the inspection line report on May 12, 2008 (Evidence 5-1, 2). Since then F consulted with M on the terms and conditions of a contract on the sale of the instant vessel (Evidence 7-2).

D) Meanwhile, the Defendant consulted on the conclusion of H and time charters, and the ICO sent e-mail sent to P on May 13, 2008, e-mail that asked him about the loan interest rate, duration of loan, possible amount of loan, etc. (No. 6-1, 2, No. 14).

E) From around that time, F contacted with financial institutions in connection with vessel purchase funds, and acquired the ownership of the instant vessel in the name of a special purpose corporation (Speci PPP, hereinafter referred to as “SPC”), while considering the method of establishing the vessel fund (Evidence No. 919, 1339, and 3 pages of witness I).

F) On June 2, 2008, M and the instant vessels were purchased at USD 16 million, and the Hong Kong attorney designated by M to guarantee the performance of the contract was deposited at 10% of the purchase price within 3 banking business days from the same date, and the instant vessel was delivered between August 1, 2008 and September 15, 2008 and the delivery notice of M was made to pay the balance of the purchase price immediately after the delivery notice of M (hereinafter referred to as "the instant MO note of Understanding"). On June 5, 2008, M transferred 1.6 million US dollars to the S account designated by M (hereinafter referred to as "Scro") (i.e., 6 million US dollars) (Evidence 1,600, U.S. 103-103, U.S. 27-1, 208, e-mail transfer e-mail No. 98-1,500 U.S. 2, 208).

H) An attorney X (hereinafter referred to as "W") on July 29, 2008 entered the following as U and P on July 29, 2008: the borrower's "Z." (hereinafter referred to as "Z"), lender gold comprehensive financial company (hereinafter referred to as "z."), 16.2 billion won in loan agreement (Evidence 239-278, No. 12-1 of the record; 30 days in relation to the transfer of loan claims; 10 days in the first letter of credit transfer (hereinafter referred to as "CF"), 20 days in the first letter of credit transfer agreement (hereinafter referred to as "CF"), 3 days in relation to the transfer of loan claims; 2 years in relation to the transfer of loan claims; 3 years in the first letter of credit transfer agreement (hereinafter referred to as "CF"), 2 years in relation to the transfer of loan claims, 3 years in the first letter of credit transfer agreement, 2 years in relation to the transfer of loan claims, 3 years in the first letter of credit transfer agreement.

I) On July 29, 2008, Dongbu Fire and Marine Insurance Co., Ltd. (hereinafter referred to as "Dongbu Fire") sent to F a "case of confirming the value of ship insurance that it is possible to subscribe to the ship's residual value guarantee insurance of USD 17 million with respect to the ship of this case" (Evidence Record 321-327 pages).

j) On July 31, 2008, U sent e-mail the ship fund investment proposal (which constitutes investment explanation data; hereinafter referred to as the "first investment proposal") in the item of "No. 1" to P and X, and the first investment proposal contains a summary of "BCHP after purchasing a ship in the name of Pama SPC as follows, and then sub-charters a ship to F through BBCHP for five years, and F pays investors 15% of the annual amount of investment and interest of 8.5% of the remaining principal and interest of 8.5% of the remaining principal and interest of the investment every four years. The first proposal contains a summary of the investment proposal in the case of 16.2 billion won, 2008, 2008. 3 billion won, 2008. 3 billion won, 2008. 1. 1. 3 billion won, 2008. 3 billion won, and 1. 1. 3 billion won, etc. of the investment proposal in the case.

C) Around July 31, 2008, W established the Z (Representative I), a SPC located in Pakistan, as a borrower of the instant promotion fund’s loan loan (No. 13-1, 2).

[Doing Fund Structure]

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타) H은 2008. 8. 4. '2008. 9. 25. ~ 10. 15.을 기일로 5년간 이 사건 선박을 F으로부터 일 10,400달러에 용선하고 주식회사 송원엔터프라이즈에 일 11,000달러에 대선하여 연 매출 400만 달러, 연 매출이익 16만 달러를 실현하기 위하여 5년간 장기용선 계약을 체결하고, 용선료 60일분 USD 624,000 + 유류대를 8월 5일 이전 투입하고자 한다.'는 내용의 문서를 기안하여 J 등으로부터 순차 결재를 받았다(증거기록 45쪽, 증제33호). 한편 F과 G 사이에 이 사건 선박을 인도한 때로부터 '5 years plus +/- 90days'2) 동안 용선료 '일(日) 10,400달러'에 용선하는 내용의 정기용선계약(이하 '이 사건 용선계약'이라 한다)이 2008. 7. 31.자로 작성되었다(증거기록 46~48, 151~161, 773쪽, 증 제10호), 파) U은 2008. 8. 4. I, P, X에게 이 사건 용선계약에 관한 질의 사항을 이메일로 전송하는 한편(증 제17호의 1), 마이어자산 직원 AA(AB)에게 이 사건 용선계약의 검토를 부탁하였고, AA은 2008. 8. 5. U에게 이 사건 용선계약에서 확인할 필요성이 있는 사항과 함께 이 사건 추진펀드에서 G의 신용도가 중요하다는 취지의 이메일을 전송하였으며, U은 같은 날 에게 위 이메일을 전달하였다(증 제17호의 2).

n) On August 5, 2008, G transferred USD 873,250 ($891,064,300) under the name of charterage and oil for 60 days with respect to the instant vessel to the F’s foreign exchange bank account ($ 873,250) and F remitted USD 339,000 under the name of debt repayment to G account on the same day (Evidence record 49-53 pages, No. 9-1, No. 9-2).

o) On August 7, 2008, I sent e-mail (No. 18), stating that “F is being engaged in the recruitment of employees, such as operation, business, official duties, and freight supervision, along with the introduction of the charity.” (No. 23) U.S. sent e-mail (No. 23) to P on August 11, 2008, stating that “I would like to ask P for the accurate name of the vessel of this case, and on the other hand, I would like to seek e-mail (No. 18) stating that “I, P, and U.S. will do e-mail (No. 19) including the cost of listing funds,” and W attorney (AD) requested I, P, and P to review the revised loan agreement, draft guarantee agreement, etc. (No. 19) on the same day.

q) AC transmitted an additional revised loan agreement to August 12, 2008, I, P, and U, and e-mail requesting review of BBCHP draft (Evidence 19-2).

r) AE, an insurance company, sent 208.8.8.12 and AF (AF.2) 2. P&I with respect to the vessel of this case to Qu208/209 (WO 24-1.) on August 14, 2008. I sent e-mail that it would be difficult to promote vessel funds due to our circumstances. It sent e-mail to P. 208.20 billion won including 20 billion won to P. 8.200, which included 20 billion won of the vessel of this case. It sent 8.20 billion won of the vessel of this case to P. 8.200, which included 20 billion won of the vessel of this case, to P. 8.20, which included 20 billion won of the vessel of this case, to P. 8.20 billion won of the vessel of this case, and then sent the vessel of this case to P. 86.20 billion won of the vessel of this case on August 208.28.

(x) On September 12, 2008, F agreed to extend the delivery date of M and the instant vessel, while at the buyer’s request, to provide 1.5% of the purchase price as a performance guarantee and to additionally provide 1.5% of the purchase price until September 25, 2008, when changing the delivery date and place at the buyer’s request, F agreed to add the instant memorandum of Understanding with the purport that 1.5% of the purchase price should be additionally provided by the contract performance guarantee. The agreement was made on September 18, 2008 and September 2008 with the Ec account.

9. Each 25.20,00 US dollars 240,000 x 1.5% of the total of 480,000 (Evidence 9-1, 2, 26 of the evidence, and 13 pages of the witness I) F re-ex the delivery date of M and the ship of this case on October 31, 208, + USD 2080,000 [1.5%) + 480,000 (1.5% + 1.5%) and its e.g., 30,000 U., 200 U.S. financial statements from the above original to the 80,000 U.S. financial statements (2,078,000). It was agreed that M&D 2,078,0000 won were deducted from 50% of bank fees and legal costs, and that M&D 37,047,000 won was deducted from 30.7.24.7.2

A person shall be appointed.

2) Relevant legal principles

The subjective constituent elements of fraud, so long as the defendant does not make a confession, the criminal intent is bound to be determined by comprehensively taking into account the objective circumstances, such as the defendant’s financial history, environment, contents of the crime, and the process of performing transactions before and after the crime, and the criminal intent is not definite. The subjective constituent element of the crime refers to the case where the possibility of occurrence of the crime is expressed as uncertain and it is acceptable. In addition, the subjective constituent element of the crime refers to the case where dolusent intent is recognized and the possibility of occurrence of the crime is recognized, as well as the awareness of the possibility of occurrence of the crime. Furthermore, whether the perpetrator permits the possibility of occurrence of the crime, or not, should be determined based on the specific circumstances, such as the form of the act committed outside the statement of the offender, and the situation of the act, etc., which were revealed at the time of the crime, should be evaluated as possible, and even if there is no possibility that the defendant bears the burden of proof as to the change in the subjective constituent element of the crime, it cannot be determined as reasonable evidence of the crime.

3) Determination on deceiving financial institutions related to loans

In full view of the facts duly admitted and examined by the court and the following circumstances revealed from the above facts, G including H was aware of the fact that the defendant was promoting the financing of the ship fund by creating the ship fund as the ship financing through Han-in securities rather than directly obtaining a loan from the bank. Therefore, the evidence submitted by the prosecutor alone is insufficient to acknowledge that the defendant was deceiving him as to this part of the charges.

A) There is no fact that H concluded a direct loan contract with the Defendant with the agricultural cooperative and concluded a direct loan contract with the Defendant that F would receive a loan from the agricultural cooperative. From the Defendant, she saw her fluencingly fencing with the agricultural cooperative through a Korean investment trust on June 7, 2008. The Defendant was aware that she attempted to seek a fencing and balance from the purchase of a vessel through a vessel fund, and that she would like to raise the fencing funds of the agricultural cooperative. The Defendant was aware that she tried to seek a fencing and balance from the purchase of the vessel through the vessel fund, and that she would like to raise the fencing funds by Korean investment trust. (See 5,11 pages, 959 pages, 964 pages, 964 of the evidence record).

B) The G’s head of the audit team stated that “The Defendant and the Defendant, during the G transaction, shall obtain a vessel purchase fund (PF) from the police as a complainant and shall request that the vessel purchase price be paid in advance.” (Evidence No. 58 pages).

4) Determination on the crime of deception and deception related to ship funds

Comprehensively taking account of the facts as seen earlier and the following circumstances revealed, it is difficult to conclude that F was in a situation where financing through the instant promotion fund was unnecessary or impossible due to the absence of investors. Moreover, it is difficult to readily conclude that the Defendant, as the absence of investors, was unable to pay the remainder due to the creation of the promotion fund of the instant promotion fund, and ultimately, it is impossible to lease the instant charter contract to G due to the failure to acquire the instant vessel, or it is difficult to deem that the evidence submitted by the Prosecutor alone was proven to the extent that there is no reasonable doubt that the possibility of occurrence of such situation and the intent to deliberate on the risks therefrom was not proven, and there is no other evidence to acknowledge this otherwise.

A) At the time of August 5, 2008, it is evident that the instant promotion fund was not established, and accordingly financial financing was not dead. H was given instructions from J prior to the payment of charterage and oil, and the Defendant asked the Defendant whether the Defendant was a financial procurement by telephone. (No. 9 pages, 92, 775 pages), and stated to the effect that “The failure of direct verification from a financial institution to the effect that the loan was carried out by the financial institution was erroneous in the course of business, but the Defendant also belonged to the Defendant” (Evidence No. 346, 543 pages). Moreover, the Defendant and H was also aware that the Defendant and H were working in the same workplace as the Defendant and H had a certain relationship of relationship in fact.

Meanwhile, according to the F’s certificate of accounts payable on November 4, 2008, according to the F’s certificate of accounts payable on or around June 2008, F was liable to G for unpaid amount of USD 450,000 by transaction, and USD 339,000 by transaction on or around July 2008 (Evidence No. 125,342 pages). The introduction of the instant vessel is due to the circumstances bearing a considerable burden in light of F’s business size, etc. (Crd No. 1474-1478 pages).

B) On the other hand, it is difficult to readily conclude that the creation of the instant promotion fund, such as this part of the facts charged, was irrelevant to or impossible to obtain financing from the time of August 5, 2008. Rather, financial experts and legal experts around that time engaged in the work for the creation of the instant promotion fund, and such work continued even after August 5, 2008. The F continues to work in line with the creation of the instant promotion fund before and after August 5, 2008.

(1) The promotion fund of this case consists of the so-called ‘BCHP' and ‘BCHP' and ‘F' and the establishment of various collateral. The fund of this case is a structure of raising the purchase fund of the ship of this case with the above loan, namely, the value created by the ship of this case in the future through charterage, etc. of the charter contract of this case. In addition, in order to realize the promotion fund of this case, the fund of this case was engaged in related work such as W X and AC with the financial experts ’ U and legal experts. Since the financial and legal knowledge lack, F was led by P from the aforementioned human composition and introduced both financial and legal experts ‘P' (Evidence record920,922, witness ‘I' and ‘W' recorded on the record of this case').

(2) P was in charge of guiding the financing of the instant promotion fund and attracting investment. U was in charge of preparing and managing investment proposals, and W (X, AC) was in charge of preparing and reviewing legal documents, and establishing SPC respectively. X circulated the draft loan agreement on July 29, 2008 and prepared and circulated legal documents that form the basis of the instant promotion fund. U was in charge of preparing and circulated the first investment proposal on July 31, 2008, which contains the outline of the instant promotion fund and presented it as explanatory material for investors, and W was in charge of establishing the Z, which is the PPC that will acquire the ownership of the instant vessel on the same day and will become the borrower. Then, U and AA was not in charge of establishing the 8th anniversary of the establishment of the instant loan agreement with the lender on August 4, 2008, and it was difficult to view the 8th anniversary of the establishment of the instant loan and the 8th anniversary of the establishment of the instant loan agreement.

(3) Moreover, on August 11, 2008, U.S. stated that “I and P re-examine the accurate name of the instant vessel and 5 million won, such as “Fund listing expenses,” and that U and K included five million won, which is the expense necessary for listing the Fund, in the final loan execution amount.” Moreover, U and K stated that “A” and “AC requests confirmation on its family and listing expenses” ( U.S. recording page 6 pages, AK recording page 3 pages). Moreover, AC also requested a review on the instant vessel’s loan agreement as revised on August 11, 2008, and the draft collateral contract as amended on August 12, 2008. Although the Fund had already consulted on August 5, 2008, many experts and experts were not reasonably informed of the revised legal documents.

(4) The F appears to have confirmed the value of the hull insurance of the instant vessel on July 29, 2008 with the rescue unit of the instant promotion fund, and as seen earlier, at the time of establishing the Z on July 31, 2008, F would assume the obligation to provide collateral, such as establishing a pledge on deposit accounts. In addition, according to the draft of the collateral contract, the Defendant appears to have obtained the consent of the transfer of claim and the consent of the transfer of claim (F’s consent to the transfer of charterage claims to Nonghyup) in attached Form 10 to G in the name, together with the draft of the loan contract, and the written consent of the KF 10 to H. 8 before or after the end of July 208, 208, the FF company’s entry into an insurance contract with the KF 2, stating that there was no problem with the KF 371,75, and the KF witness’s order to implement the meeting on July 7, 2007.

C) It is difficult to readily conclude that the Defendant was aware that the instant promotion code was no longer or that it was impossible to procure financial resources through such means at the time of August 5, 2008.

(1) When purchasing the instant vessel, F deposited USD 1.6 million (10%) as the performance guarantee of the contract, and if the balance is not paid, the deposit amount equivalent to approximately KRW 1.6 billion could have been confiscated (see, e.g., clause 14., this case’s MOU). Therefore, at least at least at the time of entering into the instant MOU, it appears that F would have been determined that it would have been able to obtain a financing corresponding to the remainder of the balance, and it would have been able to obtain a larger incentive than anyone in the course of the consultation with P. In fact, I stated that in the case of Korea’s securities, it would have been able to reach the first time with P in the course of consultation with P. In fact, I stated that it would have been able to pay the balance by one hundred and sixty billion (1.6 billion).

(2) 그런데 이 사건 추진 펀드는 단순대출보다 복잡한 구조로 되어 있고, 피고인, I 모두 선박펀드에 관한 지식과 경험이 부족하여(증인 | 녹취서 6쪽), 앞서 보듯 주요 업무를 관련 전문가에게 위임 내지 위탁하였고 이들이 이 사건 추진편드의 설정에 관한 주도적인 위치에 있었다. 실제로 관계자들이 업무를 진행하며 주고받은 이메일을 보더라도 피고인은 수신인이나 참조인에 포함되어 있지도 않았고 I은 요청에 따라 자료를 제공하고 진행 경과를 통지받는 정도였을 뿐, 실질적인 업무는 금융·법률전문가가 처리하고 있었다. '구조에 대해 정확히 알지 못하여 피고인이 문제가 없느냐고 물어보면 P에게 연락해서 P이 문제가 없다고 말을 하면 피고인에게 그대로 전달하는 식으로 업무처리를 하여 왔다.'는 I의 진술은 위와 같은 상황을 단적으로 보여준다고 판단된다.(증인 I 녹취서 10쪽). 이처럼 피고인, I은 P, U, X, AL 등 금융·법률전문가가 제공하는 정보에 의존하고 있었고, 이 사건 추진펀드의 설정 여부에 관한 판단 역시 독자적으로 하기 어려웠을 것으로 보이고 이들로부터 받는 통지나 안내에 좌우될 수밖에 없었다.

(3) In this respect, it is difficult to readily conclude that U’s e-mail (Evidence No. 20) took place after August 5, 2008, to objectively clarify the intent that it is difficult for the instant promotion fund from the aspect of financial and legal experts. Moreover, U drafted and circulated investment proposal to change the target yield, etc. of the instant promotion fund on August 25, 2008, since U subsequently subsequently drafted and circulated the investment proposal to change the target yield, etc. of the instant promotion fund, etc. on August 25, 2008.

(4) Around August 7, 2008, F also appears to have expressed its intention to expand human resources on the premise of the introduction of the instant vessel, and to have expressed its intention to enter into a mutual insurance contract with an overseas insurance company on August 21, 2008. Furthermore, on August 24, 2008, the AH and AI (the head of the agency) went through the procedures to deliver the instant vessel by getting on board the instant vessel and departing from the instant vessel on the next day, and the F agreed to extend the delivery date of the instant vessel with M on September 12, 2008, and the said agreement was made to deposit an additional amount of USD 480,000 and KRW 500,000,000 in the Sc account additionally.

(5) 한편 P은 검찰에서 "자금이 모집되지 않아 2008. 8. 초에 I 과장에게 어렵겠다고 말을 하고 중간에 그만두었던 것입니다.", "2008. 8. 초경에 제가 먼저 I에게 전화하여 펀드는 힘들 것 같다, 다른 데에서 하시라고 말해 준 적이 있습니다."라고 진술하였고(증거기록 922, 925쪽), 이는 피고인이 이 사건 추진펀드의 무산을 인식하고 있었다는 이 부분 공소사실에 부합하는 거의 유일한 직접 증거이기도 하다. 그러나 앞서 살펴본 바와 같이 2008. 8. 5.까지 U, X 등의 제1차 투자제안서 작성, 각종 법률문서 초안 작성, SPC 설립, 이 사건 용선계약의 검토가 진행되었던 점, 2008. 8. 5. 이후에도 'Over Funding'의 논의는 물론 수정된 법률문서의 검토가 있었던 점, F 역시 2008. 8. 5. 전후하여 이 사건 추진펀드의 구조에 부합하는 작업을 진행하였던 점, U은 I에게 2008. 8. 14.자 이메일을 발송하기 이전에 I, 피고인에게 연락하여 선박펀드가 무산되었다는 소식을 알린 사실이 없다는 취지로 진술한 점(증인 U 녹취서 7쪽), I은 피고인이 2008. 8. 5. 금융조달 진행상황을 확인해보라는 지시를 하여 P에게 문의하였더니 "환율 문제 이야기를 먼저 했었습니다. 저는 환율 결정되면 거의 되는 것으로 그때 알고 있었습니다.", "당시 선박펀드 설정을 위한 준비가 대부분 진행되었으므로 환율 기준일자 문제로 다소 지연이 될지라도 조만간 잔금대출이 나올 것으로 생각하였습니다."라고 진술한 점(증인 I 녹취서 9, 10쪽), 나아가 I은 "2008. 8. 초경에는 P이 선박금융이 어렵다는 말을 한 적이 없던 것으로 기억하고 있습니다. 뒤에 갑자기 안 된다고 했기 때문에 정확한 날짜는 잘 모르겠습니다."라고 진술하는 한편 이를 기억하는 배경정보로서 "왜냐하면 P 부장이 들어오라고 해서 환율 결정한 게 제가 지금 정확하게는 모르겠는데, 그게 8월인 것으로 알고 있거든요. 그러니까 그때 아무리 빨라도 초니까 초 이후에 아마 안 된다고 한 것으로 제가 알고 있습니다. 초까지는 환율을 자기가 결정한다.고 했기 때문에 당연히 되는 것으로 알고 있었습니다."라고 함께 진술하였던 점(증 녹취서 12쪽), 한편 '2008. 8. 초경'이라는 단어 자체가 명확한 시점을 나타낸다고 보기 어렵고 2008. 8. 5. 시점 이전을 의미한다고 보기는 더더욱 어려울 뿐만 아니라, P검찰에서 위 진술을 한 2010. 2. 2.은 이 사건 추진펀드가 논의된 때로부터 약 18개월 이상이 경과하여 시점을 다소 불명확하게 기억하였을 가능성도 배제할 수 없는 점, P은 이 법정에서 객관적으로 명백한 사실 외에는 대부분의 질문에 기억이 잘 나지 않는다고 진술하거나 상당히 소극적인 태도로 진술하여 위 진술의 신빙성을 보강하지 못하였던 점 등에 비추어, P의 위 진술을 그대로 믿기 어렵고 나아가 위 진술만으로 피고인이 2008. 8. 5. 시점에 이 사건 추진펀드가 무산되었다고 인식하였다고 단정할 수도 없다.

D) It is difficult to readily conclude that the Defendant intended to acquire charterage, etc. from G even in light of the instant MOU and the structure, content, etc. of the instant promotion fund.

(1) First, the Defendant deposited approximately KRW 1.6 billion, which could be confiscated in the event of nonperformance of the obligation to the Scro account (the additional KRW 500 million was deposited). However, it is difficult to view that the Defendant had reduced the introduction of the instant vessel to receive KRW 891,064,30, the half of the amount of KRW 891,00,00 from G. H also did not receive only a loan, thereby making it difficult to see the Defendant’s think that the Defendant would have come up with the lower amount of KRW 1.6 billion if he did not receive a loan (Evidence 964 of the evidence record).

(2) In addition, according to Articles 3 and 4 of the draft security contract, the letter of undertaking to set up a pledge of deposit assignment, the letter of consent to the transfer of 10 assignment, and the letter of consent to the transfer of claims, F bears the obligation to provide charterage claims to G as collateral in the instant charter contract while establishing the instant promotion fund. Therefore, it is difficult for G to arbitrarily consume charterage paid.

E) As F promoted the introduction of the instant vessel, H expressed his intention to charter the instant vessel to F, and there is also a circumstance in which H intended to raise G sales and realize profits by sub-chartering the instant vessel after charter.

(1) In other words, H has to request her [chartered]. This is because, at that time, the delivery is not absolute, and there was a point of time to create sales and profits when she borrowed 1 times under the circumstances that require more than 0 times. There was a situation to which she brought her. (13 pages of the witness H record), ? how she can sell or create profits at the time she borrowed 10 times, ? (3 pages of the record) - she purchased her vessel and she had the same duty to rent her. (2 pages), - 0 days of the recording, 10 days of the signing of the time charter, 10 days of the signing of the time charter (0.0 days of the recording) and 4 days of the recording, i.e., the difference between 0 and 0.6 days of the recording, and 8 days of the recording, i.e., the defendant's first statement that she would have been able to rent the vessel.

(2) Furthermore, H anticipated that the F’s financing will disappear, and even if the financing is not dead, H appears to have determined that the F’s obligation may be replaced by the supply of another vessel. In other words, H should not be known prior to “H,” and from G’s standpoint, it was not a sensitive situation for the loan. This is because the loan is the same from the point of view of lending.

I stated that the ship should be provided within the prescribed time limit, and if the ship is inside, similar types of ships will be given, and because there was a situation where the hardware will be removed only (Witness H recording page 14 pages).

F) In relation to the change in the shipping market, F was considerably high at the time when it was promoting the introduction of the instant vessel and concluding the instant memorandum of Understanding, and the Defendant appears to have promoted the introduction of a self-employed vessel with an opportunity to promote the active situation of the shipping industry at the time, thereby promoting the F’s sales and profit increase. However, there was also a situation where the financial crisis and the economic atmosphere that were difficult to expect to occur later.

3. Conclusion

Thus, since the facts charged against the defendant constitute a case where there is no proof of crime, it is decided as per Disposition by the decision of not guilty under the latter part of Article 325 of the Criminal Procedure Act.

The presiding judge shall be changed.

Judges Tae-young

Judicial Chief Judge;

1) As for the instant case, the Z (hereinafter referred to as “general bareboat charter”) shall be translated into “bareboat charters upon the acquisition of nationality” of the Bare Batster.

As SPC acquired a vessel, it is anticipated that it will be concluded between the borrower and F (charter).

2) However, the translation is written “5 years + 90 days”.

(iii)a representative index indicating the market situation of the world maritime transport industry, showing the yellow of cream vessels transporting raw materials, etc.;

shall be assessed.