이해상충과 금융투자회사의 신인의무－ ELS의 발행 및 헤지와 관련하여 －

Equity-Linked Securities (hereinafter referred to as "ELS") cause typical conflicts of interest between financial investment companies (hereinafter referred to as "financial companies") and investors on the basis of underlying assets' fluctuation. ELS are investment objects for investors, but they are also funding methods for financial companies. Therefore, ELS are liabilities in the financial statement. A financial investment company (hereinafter referred to as "A company") issued the ELS which handles in this article on March 16th, 2005. It sold underlying stocks many times to lower the closing price of the stock on November 16th, 2005. Eventually, the closing price of an underlying stock went down, so investors could not satisfy the early redemption condition of the ELS. However, investors, Financial Authorities and KRX did not notice the manipulation of underlying stocks. Therefore, investors received the redemption at maturity with huge damages on March 19th, 2008. After damages of ELS which had been issued by another company became an object of public concern on March 2009, investors of A company reported unfair trading to KRX. KRX investigated unfair hedging transactions among financial companies and back-to-back hedge companies (hereinafter referred to as "BTB companies"). After all, KRX Market Oversight Commission (hereinafter referred to as "MOC") gave penalties to several financial companies and BTB companies including A company. Investors filed suits against A company on October 13th, 2009. The Supreme Court made two judgments with respect to the ELS disputes. They are the first meaningful decisions regarding unfair trading of underlying assets in ELS hedge. It took more than 10 years after A company committed illegal acts for investors to receive their indemnification. Several established studies on ELS issuance and hedge, MOC decisions and courts judgment analyzed the legality of Delta-hedge trading. They concentrated on the manipulations of underlying assets and violations of good-faith principle or interruptions of condition accomplishment in civil law. However, this matter is a typical conflict of interest. Courts and studies did not consider that this case is related with the conflict of interest problem and the fiduciary duty of financial companies. The Financial Investment Services and Capital Markets Act (hereinafter referred to as "the Act") and courts decisions did not consider any solutions on how to indemnify investors' damages in conflicts of interest between issuers or BTB companies and investors. The development of legal, systematic or political solution is pending. This article is focused on the study of conflicts of interest between customers and financial companies, and responsibilities for the fiduciary duty. I recommend some suggestions with regard to the improvement of fiduciary duty in the Act. I suggest that we clarify contents of the fiduciary duty, reinforce disclosure for investors, improve burden of proof and expand methods of relief in the Act.