주가연계증권(ELS) 분쟁 관련 최근 대법원의 상반된 판결에 대한 고찰

Abstract

The Supreme Court has recently rendered a few conflicting decisions for ELS cases, contrary to the mainstream decisions which have made the so-called delta hedge transactions illegal. This article argues that the conflicting decisions have no big differences from the other majority cases, so there is no need to make the delta hedge legal activity. In addition, this review criticizes some basic counter-arguments of the defendant banks and securities firms as follows. First, there is an assertion that the delta hedge transactions are made for the requirement for financial soundness by the laws and regulations. This paper, however, insists that since the requirement for the soundness is a general and abstract duty, whether to adopt the specific delta hedge method for the financial soundness is not legally required but just an arbitrary issue. Moreover, the unfair trading regulation by the Capital Market Act(FSCMA) strictly prohibits price manipulations and/or to employ deceptive schemes with more detail and specifically. In that sense, it deserves more authority than the general duty for financial soundness. Second, there is a plea that delta hedge accords with socially acceptable rules. My study does not agree with it as follows: 1) The delta hedge lacks properness because of its excessive engagement in closing price. 2) The hedge activities are devoid of balance of legal interest in that it causes a great losses to investors for a minor benefits of defendants themselves. 3) The defendants’ acts do not meet the principles of urgency and supplementary nature since there are other alternatives like after-market trading. Third, defendants argue for exemptions from liabilities because disclosures have been made to warn the risks related to the delta hedges. This article criticizes that since legal liabilities from the disclosure and unfair trading are different and the disclosure itself is very vague and abstract, no exemption should be allowed.