파생상품거래에서 계약의 해지와 재구조화－키코(KIKO) 사건에 관한 대법원 전원합의체 판결의 쟁점－

This paper deals with one of the most hotly-debated issues regarding the Korean OTC Currency Option Product, Knock-in Knock-Out(“KIKO”) Contract. “Pacta sunt servanda,” which is Latin for “Agreements must be kept.,” is a basic principle of civil law. In its most common sense, the principle refers to private contracts, stressing that contained clauses are law between the parties, and implies that non-fulfilment of respective obligations is a breach of the pact. Needless to say, this rule should be applied to the financial contract, e.g. Korean Currency Option Contract, the KIKO Contract. The Korean Supreme Court(“KSC”) has recently decided the same rule in the 2011Da53683⋅2011Da53690 and three other cases. The KSC has confirmed its precedents that banks are required to explain the relevant information on financial instruments so that the customer could decide whether to buy or not a certain instrument. The KSC, however, stated that banks don’t have to explain whether the plaintiffs, counter-parties of the banks, are capable of terminating the KIKO contract, and how early termination amount should be. On the other hand, in 2009 the Korean Capital Market Act(“KCMA”) adopted a section of the duty to explain the important information on the financial instruments including “termination of contract.” This paper argues that while whether “termination of the contract” is possible or not should be explained under the KCMA, it’s not the duty of banks to explain the early termination amount. The Korean FSS(Financial Supervisory Service) recommends that the restructuring of the financial derivative contracts not be done under the Korean Model Best Practice Code on derivatives. This paper argues, however, the Code is best practice, and non-compliance of the code does not mean the restructuring of the contract should be void. Even if the banks recommend that the KIKO contract be unwinded and restructured to compensate the loss of the plaintiffs, that recommendation does not always mean the breach of the suitability rule.