키코(KIKO)통화옵션계약의 해지가능성에 대한 소고 - 서울중앙지방법원 2008카합3816 효력정지가처분 결정의 판시내용을 중심으로 -

This paper is on the legal possibility of termination of KIKO Contracts, prompted by a recent court decision (Seoul Central District Court 2008kahap3816) which is the subject decision. Even though the decision was rendered on a preliminary injunction case, it should be noted that the decision is the first legal stance taken by the Korean court as to the “KIKO crisis”, which arose from surging exchange rate of Korean won against the greenback since 2008 ; and the decision provides the conclusion on the legal issues in general as to the KIKO contract which has been fiercely discussed and argued and its reasoning thereof (This article is focused only on the court acknowledgment of termination of KIKO contract among the reasoning contents of the court decision.). The subject decision acknowledged the termination of KIKO contract, which is a continuous contract, based on not only to limit to principle of change of the basis of contract but on the basis of principle of good faith. In other words, according to the majority theory, only significant change of objective circumstances is acknowledged as the principle of change of the basis of contract. Differently to the majority theory, as the basis of principle of good faith, subjective circumstance which was commonly recognized by both parties (an anticipation that the exchange rate will be stably fluctuated during the term of contract) has been significantly changed, then such case can be acknowledged as for the termination of the continuous contract due to change of circumstance. Furthermore, in the process of negotiation and execution of the KIKO contract, the bank’s violation of suitability principle and duty of explanation is also acknowledged as one of the circumstances, in which the contract shall not be binding as its terms under the principle of good faith. The court’s reasoning itself on the decision is substantially logical and reasonable, and it is not inconsistent with the Supreme Court’s reasoning on the precedent cases. It is, however, somewhat problematic that the above court reasoning on the decision seems contrary to the essential nature and characteristics of KIKO, over-the-counter derivatives. In particular, it seems questionable that (i) the court acknowledged that loss of the company from the surging exchange rate is unlimited or imbalance between profit and losses of the company and the bank from KIKO transaction is significant ; (ii) the reality of financial transaction with respect to KIKO has not been considered at all ; and (iii) the standard of principle of suitability and duty of explanation has been exceedingly strictly acknowledged. In sum, whether the termination of KIKO contract is acceptable depends on (i) characteristics of each company, a party of KIKO transaction ; and (ii) specific factual background as to before and after execution of the KIKO contract. However, it is believed that KIKO situation has been essentially occurred from insufficient infrastructure in overall in our society. It indicates that human resources and legal, institutional, socio-cultural infrastructure of our country is too shallow for the tremendously grown-up financial market to lead our economy by exercising proper function. Therefore it is desirable that this issue should be handled not in terms of legal approach but toward the whole society bearing the loss at the policy level.