주가연계증권(ELS)을 둘러싼 판결들의 비교 분석 - 대법원 2015. 5. 14. 선고 2013다2757 판결 등에서 보는 위험회피(hedge)거래에서의 신의칙상 주의의무의 판단기준 -

Abstract

Korean Supreme Court rendered 6 decision on the Equity Linked Security. 4 decisions are for the plaintiffs, the investors and 2 the other cases are for the defendants, the financial institutions(BNP Paribas Bank cases). In Deutche Bank case, Seoul High Court rendered its decision in October 28th 2016 in accordance with the decisions by the Supreme Court which vacated and remanded the cases. In managing the Equity Linked Security, the financial institution(s) has to hedge the risks dynamically to avoid the risks involved. To that effect, Delta hedge is to be used generally but it has some risks of hurting the interest of the investors. This conflicts of interest has to be considered in dealing with the Equity Linked Security by the financial institution(s). Korean Supreme Court sets up some factors under the rule of market manipulation of Capital Market Act. Even the structure of the financial product(s) is same, still the civil liability of the financial institutions could be different. So the different results by the Court is not to be blamed just because of the result. But even under the rule of Korean Supreme Court, the results of the BNP Paribas Bank cases which is inconsistent with the other cases in its result cast some doubts considering the difference of the fact patterns.