계약의 구조에 대한 설명의무 -KIKO(키코) 사건에 관한 대법원 전원합의체 판결을 소재로 하여- = Banks` Duty of Disclosure on Structure of the OTC Derivatives in Korean KIKO Case

다국어 초록 (Multilingual Abstract)

The Korean Supreme Court(“KSC”) rendered important decisions on Korean OTC Derivatives, structured currency derivatives with Knock-In and Knock-Out(KIKO Contract) in 2013. The author reviews the Cases (2011da 53683·2011da53690; 2012da1146·2012da1153; 2012da13637; 2013da 26746). The KSC has confirmed its precedents that banks must disclose the relevant information on the financial instruments so that the customer could decide whether to buy or not the instruments. The KSC stated that banks have to disclose the structure and detailed information on financial instruments. On the other hand, the KSC held that banks need not specifically disclose the detailed financial engineering formular in the KIKO contract. This paper deals with one of the most important and hotly-debated issues regarding the duty of disclose on the financial instrument. The main point is as follows: In 2009 the Korean Capital Market Act(the KCMA) adopted a section for the duty to disclose the information on the financial instrument. It is debatable whether the structure of the OTC derivatives has to be disclosed to the customerunder the KCMA. This paper concludes that the basic information on the structure of the contract has to be disclosed, whereas the detailed financial engineering formular need not be disclosed. In that sense, the author agrees on the KSC`s judgment.