형법적 관점에서 본 프로젝트 파이낸싱(project financing)

Abstract

Project financing discussed in this study is defined as follows: “A financing of particular economic unit in which a lender is satisfied to look initially to the cash flows and earnings of that economic unit as the source of fund from which a loan will be rapid and to the assets of economic unit as collateral for the loan.” That is, project financing takes future feasibility as security. Future feasibility is changeable. That a financial institution lends money with uncertain future feasibility as collateral is contrary to the judicial precedents that regard the risk of the occurrence of damage as damage in cases of dereliction of duty by financial institutions. Therefore, it is ironical to consider project financing, which has been encouraged as a part of the government’s fund collateralization policies. Accordingly, the present study purposed to understand the exact meaning of project financing, to examine the structure of lawful project financing and project financing violation and to distinguish between the two. The conditions for a project financing loan to be violated are as follows: ① Fiduciary ② does an act of neglecting his duties and by doing so ③ has caused a loss of property to the financial institution and ④ he himself or a third party has gained profit from the act. Among these conditions, ① ‘A person who is carrying out another person’s business’ is considered satisfied because the subject is usually an executive or an employee of the financial institution. On the other hand, ④ ‘The person or a third party has gained a profit from the act’ is also considered satisfied because the third party SPC (Special Purpose Company) gains a profit. The matter is whether conditions ② and ③ are satisfied. To answer this question, we need ② to typify the acts of duties neglected and ③ to establish the concept of loss. As for the concept of loss, judicial precedents include not only practical losses but also ‘the risk of the occurrence of property losses.’ Such risks can be ‘the risk of bad debts,’ ‘agreement to pay consideration,’ ‘decrease in a fund put aside for a specific purpose’ and ‘liquidity risk.’ However, such an attitude of judicial precedents implies risk criminology that attempts to protect social functions using the provisions on breach of trust. This can be considered an act of violation in the stage prior to the infringement of law‐protected interests. In addition, this is contradictory to the literal meaning of “When a loss has been inflicted upon the person himself” in the provisions on breach of trust. Considering these, it seems contrary to the original duty of criminal law to determine whether it is breach of trust before the date of maturity. On the other hand, in order to see if a loan made in the course of project financing is an act of duties neglected or business judgement, we need to examine whether there has been an act of procedural duties neglected as in other types of breach of trust. Furthermore, it should be determined whether there has been an abuse of discretion. The abuse of discretion can be determined based on interest balancing. In order for project financing not to be an illegal means, the participants must fulfill procedural duties and decisions made in the course should maintain interest balancing.