금융투자업자의 설명의무의 범위에 관한 비판적 검토 - 키코통화옵션상품 관련 판례를 중심으로 -

Abstract

After the enforcement of Capital Markets Act which drastically reinforcedinvestor protection, many disputes regarding financial investment productsaroused so that one can test the function of those measures. Globalfinancial crisis, intensified after year 2008, resulted in huge loss to manyinvestors who invested in financial derivatives like KIKO currency option andfunds whose underlying asset is financial derivatives, and a lot of civilactions were filed by those who lost money insisting violation of investorprotection rules. In these lawsuits, one of the most important causes of action waswhether the financial investment firms complied with the duty to explain. Itseems, however, that there is a little confusion among the cases regardinginterpretation of the scope of the duty. Therefore, this article intended toreview the legal precedents from critical point of view and to find abalanced interpretation between investor protection and investor’s liability. First, this article points out the necessity to decide the scope of the dutyconsidering suitability to a specific investor, not limiting to the financialproduct itself, when it comes to interpreting the scope. Then, another pointis that “providing necessary and sufficient information for investors’reasonable decision” is appropriate for the degree of explanation, though some legal precedents rule that financial investment firms need to explain“to the degree that the investors’ understanding is equal to theirunderstanding.” In addition, concerning information to be explained, thisarticle suggests that it is necessary to distinguish external variables likeexchange rate from the content of financial product itself and that theexperience and liability of investors should be considered deeply. Finally thisarticle suggests critical views against the viewpoint of court on documentaryexplanation requirement and the explanation power of english documentregarding the way to explain.