장외파생상품 거래에서의 자산운용회사와 판매회사의 투자자 보호의무 (대법원 2011. 7. 28. 2010다76368 판결을 중심으로)

risk associated with the underlying assets. Derivatives are difficult to understand the structure of the product because the structure of the financial instrument is very complex. And securities will bear the risk of capital loss, but derivatives shall bear the risk of additional payments in excess of the principal loss. In addition, intestinal derivatives are regarded as safe because central counter party guarantees the payment of money. But over-thecounter( OTC) derivatives transactions are signed between the parties to a sale without the security of central counter party. Therefore, They are exposed to the danger of breach of contract. Thus, asset management company should fill out the complex state of the OTC derivatives and the original high risk of further losses in the prospectus and advertising papers, and asset selling company should explain about the risk of further losses and the structure of OTC derivatives to the general investors when selling the company's products. So general investors can fully understand the risk of further losses and the structure of OTC derivatives. Unless they don't meet their obligations, they violate the principle of conformity and the duty of explanation about the merchandise. Therefore, they should repair the damage to the general investors to be suffered due to them.