금융·증권법 판례회고-파생상품거래에 관한 최근 판례회고-

Abstract

A future contract is an agreement to buy or sell a specific amount of a commodities at a particular price on a stipulated future trade. Futures is an important tools for risk management. Futures contract is eventually zero-sum game. The loss in one is likely to offset by a gain in the other. Even though futures are an zero-sum game, derivatives are to be harmful to the parties with its complexity, market manipulation and fraud. Court shall apply torts in this case. Torts theory as compared with contract theory is convenient in practice but at a disadvantage to the client. Contract theory is advantageous in liability of assistant, prescription, set-off and liability in proof. This attitude makes contract theory dwindle and aggravates the position of client. 1) Therefore the problem of illegal solicitation can be solved with a fault in contracting. 2) Also the liability of notice in derivatives falls on the liability of safeguard and can be solved with contract theory. There is a tendency the Supreme Court made an application the method of a dealings in stocks rather than in derivatives in the problem of consumer protection. It is necessary to set up a criterion in the determining of unlawfulness in illegal transaction.