파생상품거래에 있어서의 이사의 책임

Abstract

Since the advent of derivatives, companies began to use derivatives transactions in order to avoid the losses by controlling the internal and external factors in the market. Derivatives in the conventional was used to ensure stable prices and supplies of raw material(oil, steel, grain ect.). But in recent years, it is used to avoid the losses that caused by exchange rate fluctuations, as well as a variety of reasons, including climate change. The KIKO case is that the derivatives trading for hedging the losses of exchange fluctuations is the case in question. In that case, litigations is ongoing between banks and companies, but looking at the case of U.S.A. and Japan, in the future the company's board members will represent a claim. So, in this article, liability and duties of directors on the derivatives transactions will be discussed. First, we consider whether the derivatives transaction to avoid losses is within the purpose of the company or not. The purpose of derivatives transactions can be classified as hedging, arbitrage, speculation according to the purpose of traders. Derivatives transactions for hedging and arbitrage is within the purpose of the company Second, if the derivatives transaction is within the purpose of the company, directors have fiduciary duties. Thus, they have duties to install and operate risk management systems in derivatives trading. If they have violated such duties, it will be responsible for losses caused by that transaction. Third, because the value of derivatives is linked to underlying assets, losses caused by losses caused by that transaction will be determined not in transaction time but in the future. So, directors may be held responsible for the variable that they cannot control. But, because this is very unreasonable, it is necessary to limit the liability of directors by applying the business judgment rule.