영국과 한국의 장외파생상품 불완전판매 분쟁 처리방식에 대한 비교―영국의 이자율헤지상품 사태와 한국의 키코 사태를 중심으로―

The recent recommendation about KIKO by the Financial Dispute Mediation Committee, which is an alternative dispute resolution organization in South Korea, sheds a light on KIKO mis-selling dispute again. It is noteworthy that the UK had interest rate hedging product(hereafter “IRHP”) scandal just after the global financial crisis, which is quite similar to KIKO scandal. This article analyses the effectiveness of dispute resolution of KIKO in comparison with IRHP mis-selling dispute resolution in the UK. The most prominent characteristic of the UK’s resolution in the disputes of IRHP mis-selling is the bifurcated compensation system operated by the court and the financial regulator separately. In the UK, the court and regulator resolved the disputes in separate areas with their own different principles. The court prioritized, based on private law, the contractual relationship over the reality of transactions in its decisions, while the regulator arranged compensation scheme with the relevant banks for the suffered SMEs based on financial regulation. In Korea, the roles of compensation and sanction are clearly separated, where the court makes compensation order and the regulator sanctions breach of financial regulation. In the KIKO scandal, the court applied the case law based theory of Duty of Client Protection to KIKO cases and prioritized the reality of transactions over the contractual relationship in its decisions. The regulator of Korea seemed to be reluctant to get involved in the dispute resolution in postponing its sanctions to the relevant banks until the district court’s decisions and rejecting SME’s ADR applications blaming insufficient evidence. As a result, the KIKO dispute resolution in South Korea was heavily dependent on private law system. However, due to the difficult access to the official court’s decision process by the SMEs, South Korea’s dispute resolution system which heavily depended on the court left many SMEs in blind spots from institutional protection. Massive mis-selling disputes over non-standardized financial instruments like KIKO can occur anytime in the future owing to the deepening of capital market. The current dispute resolution system dependent only on the court can not help but taking a large amount of social costs in dispute resolution. In order not to repeat the failure of dispute resolution in KIKO scandal, it is required to expand the role of financial regulator in the dispute resolution process.