TRF계약의 불공정성에 관한 연구―법원의 판단에 대한 문제제기를 중심으로―

Abstract

The Supreme Court Judgement on KIKO litigation has affected other lawsuits on derivatives, which could cause an unexpected problem. In fact, several banks have introduced new and toxic derivatives products to their investors, and whenever there are disputes on the products, banks insist the product is the same one as the KIKO product that was judged favorable to banks by Korean Supreme Court earlier. TRF(Target Redemption Forward) is one of the most problematic products among those disputes. After the first trial of this TRF case, I explained several points on the difference between KIKO and TRF. I felt the court of the second trial partly understands the difference between the two derivatives contracts. It is regretful that the court of the second trial also reached a verdict on negative prescription only. I am going to analyze matters on the unfairness of TRF contract through three sides in this paper. It is because I believe the argument on the unfairness of TRF contract is valuable enough. Firstly, the step down structure of strike price seems unilaterally unfavorable to the plaintiff as time goes by, which could mutilate the fortuity of exchange rate floating. Secondly, the ‘4 times condition’ and ‘excessive delta condition’ of this TRF case seems to be coercion of speculation for the plaintiff who needed hedge transaction. Thirdly, the ‘one-sided accumulation’ condition combined with the 36 months long-term contract could deteriorate the interest of plaintiff severely. In conclusion, the sales of hedge derivatives products by commercial banks should be firmly regulated.