금융상품의 적합성원칙 관련 대법원 키코(KIKO) 판결의 분석과 평가

Abstract

After the 2008 Global financial crisis, small and medium enterprises (SMEs) were hit by a foreign exchange hedge product called KIKO along with the worsening economic situation. Thus claims for damages of great scale had been made against contract opponents, the banks. In September of 2013 the Supreme Court gave verdicts on the four main cases that contained the common issues of the KIKO suit, and the legal arguments surrounding KIKO in South Korea are presumed to have been concluded. However the improper sales of financial products may be continuously problematic in the future and the risk of these will increase as the economy advances and financial products become more complicated. Recently the KIKO related suits of Korean SMEs were acknowledged by the US court, unfolding second rounds of KIKO suits in the US. In addition, debate over the improper sales of ELS has been fierce since the hot financial product getting into the knock-in section following the recent stock market crash in China. Of the core issues of improper sales, the principle of suitability, along with the duty of explanation, is a basic protective device for financial consumers that applies to almost all sales of financial products. Thus, this paper focuses on the implications and related issues of the Supreme Court verdicts on these cases with a focus on the principle of suitability. In particular, it analyzes and studies 1) whether hedge itself existed or not, 2) the suitability of investment recommendation in the case of over-hedge, 3) the conditions of automatic removal in the two-stage structure contract, and 5) whether the liability for damages based on the violation of the principle of suitability stands.