2022년 금융법 중요판례평석

Abstract

Diverse finance law cases have been rendered in 2022. Regarding a finance regulation law, internal control procedure case is important. Financial Supervisory Service(“FSS”) held bank management responsible for insufficient internal control with DLF sales. However, the court decided that the liability to prepare internal control procedure is different from the liability to employ the procedure sufficiently according to the Financial Company Governance Act. But it is important in the sentencing that if essential components are not included in the procedure, though the procedure meets the minimum legal requirements, still it is against the law in substance. There are many cases law rendered related to finance transaction law as well. As to a remittance from error, previous case law has been sustained but detailed decisions added including bank liability to check an intention of remittance addressee. Regarding unfair trading in the Korean Capital Market Act, some important cases was decided such as scalping scheme. Also, as a way of financial transaction is diversified, it is crucial for regulatory authority to respond to new kinds of financial crimes like phishing. A series of cases was published to theses crimes as well. A total return swap(TRS) is another important issue for evasion of regulation. Noteworthy case regarding unfair subsidy through TRS was rendered. It is noticeable that major cases are decided regarding liability for damages including legal principles with presumption of the amount of damages. Meanwhile, as to virtual asset such as a bitcoin, the constitutional court of Korea rendered that the ICO prohibition of government task force is not a matter of execution of public power which is a subject of constitutional petition. However, because the legal position of virtual asset is still not clear, the role of courts would be more important in the future.