최근 파생상품관련 주요 판례에 대한 소고

Abstract

Since the KIKO(Knock In Knock Out) financial currency option derivatives decisions were made at the end of 2008, Korean Court has developed some legal principles as per the Derivatives. Those decisions become the key principles in the case of the protection of the financial investor cases where they claim their damages caused by the financial investment companies lack of due care, insufficient explanation which led the investors into a unexpected financial burden bigger than they decide to do their investment. In this article, 5 cases recently rendered by Korean Supreme Court were illustrated. Equity Linked Warranty(ELW) case was an important and a highlighted case because it was first case Financial Investment and Capital Market Act §178 1-1 was firstly applied in a criminal case. That provision was promulgated reckoning on the US SEC’s Rule 10b-5. However it is a not aligned provision in light of the whole Korean criminal law system. Thinking of this issue, Korean Court developed its own legal principles in this case. That was not a cure all principle but it was a good starting block for further use. In re Equity Linked Securities, Security Related Class Action Act related first Supreme Court Case was rendered. This is a first case where Supreme Court approved class action based upon the Capital Market Act §178 and §179. RE ELS, two specific securities linked ELS was sold heavily. In this sort of ELS, Delta Hedge or dynamic hedge was debated. Korean Supreme Court rendered its decision that this sort of scheme also has to be exercised carefully not to hinder the completion of the pre-arranged condition. Together with these cases, the relationship between the Gamble and Derivatives and the meaning of “accident” under the Electronic Financial Transaction Act §9 are the other 2 cases analyses in this article.