KIKO 분쟁에 있어서 판례의 동향과 자본시장법상의 쟁점
The trend of KIKO cases and issues of Capital Market and Financial Investment Service Act
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KIKO cases have been one of the key words in Korea since 2008. During that time, a number of midium and small sized companies were in fierce battle with banks due to the KIKO contracts. KIKO is a financial product designed to help midium and small sized exporters hedge against currency fluctuations. KIKO contracts allow companies to sell dollars at a fixed won-dollar rate if the won moves within a certain range. If the won falls below the range, companies have to sell dollars below the market rate, leaving them exposed to potentially large losses. Earlier 2009, with exchange rate soaring above what was originally expected, many KIKO subscribers have suffered losses as they have to buy dollars at a higher rate to repay their dollar-denominated debt to banks. In KIKO disputes, the parties to a suit seem to have opposing views on the root causes of the conflicts. The arguing points can be diverse according to viewing the cases from different angles. In my opinion, it is likely to lose a case if plaintiffs claim under the theory of fraud, mistake, Clausula rebus sic stantibus of civil law, because the law is built on the foundation of equal relations between the parties. Also, I think that the character as a terms and conditions about KIKO contracts can not be acknowledged easily. So, it would be better to apply the Capital Market and Financial Investment Service Act or old Securities and Exchange Act on KIKO cases, for they are based upon the premise that general investors are not on an equal footing with financial industries. Above acts effort to make them enter into a contract on equal terms artificially. As financial products are becoming more complex and information technology develops, the protection of Consumers, the duty to explain, the principle of suitability, and know-your-customer-rule and so on, has been an very important issue in the financial markets.
Abstract
KIKO cases have been one of the key words in Korea since 2008. During that time, a number of midium and small sized companies were in fierce battle with banks due to the KIKO contracts. KIKO is a financial product designed to help midium and small sized exporters hedge against currency fluctuations. KIKO contracts allow companies to sell dollars at a fixed won-dollar rate if the won moves within a certain range. If the won falls below the range, companies have to sell dollars below the market rate, leaving them exposed to potentially large losses. Earlier 2009, with exchange rate soaring above what was originally expected, many KIKO subscribers have suffered losses as they have to buy dollars at a higher rate to repay their dollar-denominated debt to banks. In KIKO disputes, the parties to a suit seem to have opposing views on the root causes of the conflicts. The arguing points can be diverse according to viewing the cases from different angles. In my opinion, it is likely to lose a case if plaintiffs claim under the theory of fraud, mistake, Clausula rebus sic stantibus of civil law, because the law is built on the foundation of equal relations between the parties. Also, I think that the character as a terms and conditions about KIKO contracts can not be acknowledged easily. So, it would be better to apply the Capital Market and Financial Investment Service Act or old Securities and Exchange Act on KIKO cases, for they are based upon the premise that general investors are not on an equal footing with financial industries. Above acts effort to make them enter into a contract on equal terms artificially. As financial products are becoming more complex and information technology develops, the protection of Consumers, the duty to explain, the principle of suitability, and know-your-customer-rule and so on, has been an very important issue in the financial markets.
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