키코 계약의 소비자 계약성

Abstract

KIKO contract system, introduced as one of derivatives options to hedge foreign exchange risks in Korea, has never failed to draw conflicts regarding its inherent unfairness and fraudulence, continuously producing legal suits between banks and businesses and volatile controversy among courts, supervisory authorities, and academic circles. KIKO contract was a chief derivatives option that was rapidly widely traded in 2006-2007, when the exchange rate was falling stably. But as the deteriorating financial crisis and the Government's exchange rate policy affected the rate against US dollars to reverse its trend to rise sharply, smalland medium-sized exporting businesses that had KIKO contracts had to suffer great losses since they had to sell their dollars from the export payment at the rate designated in the contract with their KIKO banks. This paper suggests to solve legal conflicts surrounding KIKO contract from the consumer's view; for businesses, the consumer, may have purchased the contracts impulsively without being fully aware of the complicated and risky nature of KIKO as derivatives, and also businesses in the contract are apparently and asymmetrically less competitive in terms of economic power and information than their counterpart banks. Issues in legal KIKO suits have been if KIKO contracts should be interpreted by the contract terms, if the contract was unfair, if the contract could be terminated according to the changes in circumstance rule, if the contract was of error or fraud, if the contract could lead to fraud charge, if suitability or explanation liabilities were satisfied, etc. This paper suggests the KIKO suits be handled and examined through the consumer protection law in addition to the private and criminal laws, noticing most KIKO contract buyers are small- and medium-sized exporting businesses and identifying them as consumers. Fairness and effectiveness will be enhanced in solving legal KIKO conflicts in those issues mentioned if the KIKO problem is handled through the consumer protection law and is viewed further through consumerism