주가연계증권(ELS) 델타헤지거래 관련 분쟁의 분석

Under the trend of low interest rates, issuers (or hedge fund management companies) of ELS (Equity-Linked Securities) hedge against the risk of loss with the financial engineering technique of delta hedging. However, on a number of occasions, early redemption was frustrated as issuers, etc. sold in bulk at low prices underlying assets of ELS which had been held for hedging purposes. In each case, investors filed civil lawsuits against issuers or hedge fund management companies, and the traders who sold them in bulk were indicted for price manipulation and subject to criminal proceedings. There were fierce disputes, with a judgment at a certain court level disagreeing with a judgment at a different court level in such civil and criminal cases. The Supreme Court of Korea in a civil case involving Daewoo Securities reversed the judgment at the lower court against the plaintiffs and remanded the case, in favor of the investors. Also, the Supreme Court of Korea in a criminal case involving Mirae Asset dismissed an appeal from a trader who sold underlying assets in bulk at low prices in delta hedging trades and was convicted at the lower court. If the trust in ELS, despite its merit as an investment product, is lost in the market due to the conflict of interests between a securities company and investors, price manipulation or other issues, ELS's life as an investment product will not last long. As ELS is a structured product designed based on finance engineering, asymmetry of the understanding of the product and the influence of the product is extremely large among investors, issuers and hedge fund management companies. Thus, the recent decisions of the Supreme Court of Korea can be positively evaluated in that they show the intention of the Supreme Court of Korea to protect investors. On the side of ELS issuers (or hedge fund management companies) or finance engineering, there is a criticism that the decisions in the civil cases acknowledging the issuers' liability regarding redemption amounts as well as the decisions in the criminal cases acknowledging traders' price manipulation are made excessively only from a perspective of judges, prosecutors and lawyers without understanding of financial products. Some understand relevant disputes as a collision between finance engineering and law. They say that while those activities raise no issue from the finance engineering point of view, the legal judgment on the activities is biased. However, these precedents should not be construed as denying risk management and hedging by a finance company dealing with derivatives trading. Such misunderstanding is caused probably because the terms used by finance engineering and law are different from each other and their viewpoints are different from each other. Also, that is because the reasoning of each of them has been carefully developed so as to aggravate self-conviction by itself under the extreme circumstances where the judgment of each of the courts of first instance is different from each other for the same product and the judgment at each court level is different from each other. The essence of ELS-related disputes is the legitimacy and legality of delta hedging. This paper explains to the finance engineering field the legal meaning and appropriateness of the judgments through legal analysis by using finance engineering terms, graphs, etc. and explains to the legal field the unfamiliar concepts and principles of finance engineering, such as delta hedging, etc., on an empirical and legal basis.