충실의무를 위반한 과당매매의 손해배상범위

Abstract

【Abstract】 The Compensation for Damage occurred by Churning violating Fiduciary Duty Kim, Sung Ho Churning occurs when a broker exercising control over the volume and frequency of trading, abuses his customer's confidence for personal gain by initiating transactions that are excessive in view of the character of the account. Churning requires proof of three elements. These are Control over the account by the broker, Trading in the account that is excessive in light of the customer's investment objectives, Broker's intent to defraud or his willful or reckless disregard of the customer's interest. There are three methods to measure client's damage- quasi-contractual theory, out of pocket theory, loss of bargain theory. Among these methods quasi-contractual theory includes only commission fee, interest and tax which are client pay to broker-dealer. This method is most easy to calculate the damage but not enough to cover client's damage. So next out of pocket theory is considered. Under the out-of-pocket measure, the investor recovers his trading losses-- the difference between what he started with and what he wound up with at the end of the churning period. So this method covers the client's damage almost. But this method is too hard to broker-dealer because it includes all the damage that take place in churning period. Thus, if it can be shown that some of the loss was in a security that was held for a long period, it would be proper to adjust damages downward to reflect the fact that the churning did not "cause" the loss in that security. The third method is loss of bargain theory. This method seeks to determine the loss of opportunity resulting from the churning. So it covers "market- adjusted damages". For this purpose, it uses market index(ex. S&P index). Such market-adjusted damages are appropriate because the investor had a reasonable expectation that the broker would act consistently (and exclusively) for the investor's interest; market- adjusted damages are thus designed to fulfill that expectation. Recently Korea Supreme Court held that damage claimed in churning case must be calculated by loss of bargain theory.