ELS 헤지활동에 관한 판결 동향과 투자자보호 쟁점 - 시세조종 의도 판단시의 이해상충회피⋅관리의무를 중심으로 -

ELS has unique characteristics that it needs (delta) hedge where a hedging entity should buy or sell the underlying assets depending on the change of delta values. On the other hand, financial investment business entities (hereinafter, FIBE) have legal duty such as duty of good faith, duty not to pursue its own self-interest thereby undermining the investors’ interests without justifiable reason (§ 37) and duty to control interest conflicts (§ 44) under the Korean Capital Market Act. When a FIBE is an ELS seller or it is a swap contract with an ELS seller (back-to-back hedge), it has a legal duty to manage his own financial risk and it can be entitled to do dealing for its own hedging purpose. The same reasoning applies to a FIBE’s other duties; as it has a legal duty of good faith, etc. it should abide by the exactly same duties even when it is buying or selling underlying assets for hedging. Therefore, a court cannot but consider legal duties of a FIBE when it inquires into the material issue of existence of a FIBE’s manipulative intent in the process of disposing in bulk. In market manipulation cases related to structured products like ELS, the essence is not a hedge but a basic matter, that is, whether and how much a FIBE in question did its effort to observe its own legal duties under Korean Capital Market Act. If a FIBE is found to have neglected its duty of not pursuing its own self-interest over investors’ interests without justifiable reason under interests conflicting situation, it will lead to considerable doubt that there might have been an manipulative intent which includes a gross negligence about that its own self-interest pursuing acts. Claiming that a FIBE did selling in bulk for hedge purpose may not justify its position when it did’t reasonable measures to avoid interests conflicts with investors.