키코통화옵션계약의 무효·취소 가능성에 대한 소고

Abstract

The argument of Invalidation or Cancellation of KIKO (Knock-In Knock Out) Foreign Currency Option Contracts ("KIKO Contracts") is one of the critical legal issues in relation to the KIKO legal proceedings. Whether KIKO Contracts are invalid depends on that KIKO Contracts are in violation of Regulation of Standardized Contracts Act and KIKO Contracts fall under Article 104 (Unfair Legal Act) of Civil Act. Whether KIKO Contracts are in violation of Regulation of Standardized Contracts Act depends on (i) "the structure of KIKO Contracts itself instead of the individual provision of KIKO Contracts can be deemed the Standardized Contract; and (ii) there is any unfairness from violation of Regulation of Standardized Contracts Act. Even as to“the structure of the contract”, if the individual terms and conditions, which are composed of structure of the contract, cannot be amended or revised through the negotiation between the parties, then such structure of the contract can be deemed a standardized contract. However, the structure of KIKO Contracts is presumed to be made through the negotiation between the parties, and thus the structure itself of KIKO Contracts cannot be deemed the standardized contract. Also, the structure of KIKO Contracts is deemed not to have any unfairness in violation of Regulation of Standardized Contracts Act. Whether KIKO Contracts are cancelable depends mainly on (i) the banks' fraud (Article 110 of Civil Act) or (ii) the companies' mistake (Article 109 of Civil Act). However, the result of such issue will be different depending on the specific factual background before and after execution of most KIKO Contracts. Provided, however, it is problematic whether to acknowledge such circumstance that the companies and banks entered the KIKO Contracts under both parties’ forecasting or expecting that the foreign exchange currency rate would be steadily fluctuating within certain range for the contract term, as “both parties’ common mistake” for cancellation of KIKO Contracts; instead, such circumstance can be merely considered as one of the circumstances as to whether to decide to execute KIKO Contracts or as an issue of mistake of motivation of contracting, but it cannot be deemed to be a presumption of execution of the KIKO Contracts. As such, the above legal theory cannot be applied to the KIKO Contracts. In conclusion, although the bank's violation of suitability principle and duty of explanation is acknowledged in the process of negotiation and execution of the KIKO Contracts, effectiveness and validity of the KIKO Contracts cannot be denied retrospectively due to such violation.