프로젝트 파이낸싱(Project Financing)에서의 배임죄

Project Financing(PF) is 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. Project Financing always exists the risk for the future. Because they look at cash flow in the future to invest. In Korea’s misappropriation cases not only direct damages for loss but also they look at risks of damages for loss too. According to these cases, PF can be sufficient to constitute the misappropriation. Recent case of Busan Savings Bank, PF is very bad and government should punish the bank. But PF exists in the law of corporation tax and was recommended as methods in the past. So PF should not be punished by misappropriation directly. Although damage occurs in the PF rather than misappropriation, PF characteristics should be considered. These characteristics were already considered in a recent case. Issues of failed PF are actus reus(voluntary act) and mens rea(guilty mind). Mens rea require that the state prove the defendant’s actual mental state with regard to facts and result. But how can the state prove that? The answer is inference through the dependant’s act. Thus, it is very important to decide what the defendant act is in the PF. I categorized into three, but two important things will be mentioned. There are violations of procedure and judging errors of the risk. A Financial institution’s internal control standards (compliance system) suggest the proper procedure in the PF. Violations of procedure can be found through standard of the PF. If they do not follow these procedures and standards it will be fault procedure of the PF. Even if a banker follows the procedure by the right steps, the judge must be more cautious because of errors of the taking risk. Because PF is high-risk loan. Therefore in this part of the risk management decisions should be considered by the business judgment rule. These days the savings bank’s PF are serious. PF projects without evaluating the value of the SPC and only see the constructor’s credibility. It is financial institution’s mistake without going through proper procedures of the PF. EBRD spends in 2-3 years of the investigation and spends over $1,000,000 to review if business is adequate. In addition, EBRD requires the SPC's own capital ratio of 30-40%. The original PF requires like this long-term and the close inspection. To do this, the independent agencies should assess the objective appraisal. And the compliance system may be reinforced with a crime (business misappropriation) and can be controlled.