키코사건과 관련한 하급심 판결의 재검토

Abstract

This paper deals with KIKO cases and lower courts’ decisions in detail and focuses on some problems of those decisions. It aims to suggest to the Supreme Court of Korea what was wrong with the decisions and how should solve those problems wisely and impartially. This suggestion may be a cornerstone of a future case similar to KIKO. This paper emphasizes that KIKO was designed originally unfair and unbalanced in terms of structure itself and that a KIKO contract could be a standard form contract stipulated by “the Act on the Regulation of A Form Contract.” That is to say, KIKO was designed on minus value but the purchaser of this kind of an over-the-counter derivative could not negotiate freely the structure, including the combination of a call option and a put option, knock-in and knock-out conditions, leverage, striking price and so forth, with a selling bank. Nevertheless, almost all of lower courts in Korea have regarded this contract as the product of negotiation between parties. Lower courts have not reviewed the KIKO structure so seriously that the Supreme Court of Korea will neither consider this issue because it feels very burdensome to be against the stance of lower courts. Then, the fiduciary duty is the last resort on which the Supreme Court of Korea will completely rely. Regarding on the fiduciary duty, recently the Supreme Court of Germany and one trial court in Korea held that a bank should be more cautious to explain the structure and relevant risks in detail to its clients when selling complicated derivatives like KIKO. After being informed, the client must understand the structure itself, fluctuation, and potential risks such as market risk and opposing party risk and etc., as if he stands on the bank’s feet. In KIKO cases, however, banks could not argue that they performed all the duties, including duty to give all the information and advices that they had, since they had motives to conceal important information due to unfair and unbalanced minus structure of KIKO in essence. The Supreme Court of Korea will be expected to make a right decision with regard to the fiduciary duty. In addition, this duty is not derived from the principle of good faith but from the regulations of the FSC and FSS, and thus the Supreme Court of Korea should not consider the contributory negligence of clients when determining the amount of damages.