기업의 파생상품 거래에 관한 업무상 배임죄의 성립 요건과 기수시기

Abstract

Many companies seek derivatives in order to hedge market risks. There are several studies indicating firms seeking derivatives for tax evasion, irregular succession; moreover, some board of directors causing serious consequences by exposing the firm or a third party at high risk deals in a financially distressed situation. There were two cases in which the directors were prosecuted for malfeasance; this study reviews these cases' reasoning, especially the issue of the point of consummation. In option deals as in the case, exercising the option is not always foreseeable; furthermore, the right is not due until the agreed date. Therefore, the issue concerning this criminal case was whether the chair party acted intentionally, when the crime would be considered consummated, and how would the damage be estimated. The Supreme Court ruled upon the circumstantial evidence with the purpose of the deal that the act was out of malfeasance in office. However, the two cases seem to rule quite differently in the point of consummation; one ruled the point of consummation was "the exercise of the option", one "the time of the option deal". However, the ruling could be interpreted as coinciding because one case lacked the incident of exercising the option; both cases interpreted the damage would be that the stock value itself rather than the premium cost. Withal, the Court dismissed the charges against the parties that joined the board of directors after the option deal, reasoning that merely carrying out the deal itself was not the cause of the damage; the damage was foreseeable and the deal was intentionally made to impute the loss. The ruling has its importance that it dealt with fraud and malfeasance in derivative deals. However, in this specific case the Court was able to reason through circumstantial evidence that the deal was carried out intentionally to shift the loss to another entity, ruling out the possible excuse of "business risk"; but in other cases this would not be applicable. Rather, other cases may have to investigate the design of the derivative deal, whether it was financially hedged adequately, or whether the party manipulate the underlying asset market.