금융거래의 일체성에 관한 법적 연구 -다수의 장외파생상품거래에 대한 Credit Suisse international v Stichting Vestia Groep [2014] EWHC 3103(comm) 판결을 중심으로-

In the case of Credit Suisse International v Stichting Vestia Groep [2014] EWHC 3103(com), the UK court recast multiple financial transactions as a single contract because of economic substance. Although both parties have entered into multiple transactions, The fact that the court recast them as a single contract ex post can cause unexpected legal risks. The recasting of financial transactions is linked to various problem in capital markets. back-to-back, KIKO, and Repo have the risk of being recast as a single contract at any time, because they are based on multiple transactions. Depending on whether transactions are recast as a single contract, the validity of the contract, the scope of its recovery, the scope of violations of financial regulations may vary. According to the Article 137 of civil law, The factors that determine recasting are subjective intention, objective relevance. Courts are generally considered to use the two factors equally, but sometimes criticized for using only objective relevance. The court, however, takes precedence over subjective intention, and considers objective relevance as one of the factors to judge subjective intention. Given that the development of financial engineering allows the parties to design transactions that perform the same economic functions in a variety of ways, subjective intention should be considered superior in determining the recasting of financial transactions, and very careful in reversing them for objective relevance. However, if multiple financial transactions are entered into with the aim of circumvention of regulations, an exception should be recognized.