역외 금융거래에 대한 자본시장법의 적용과 부정거래행위에 따른 배상책임에 있어서 인과관계의 인정 여부 - 대법원 2023. 12. 21. 선고 2017다249929 판결을 대상으로 -

This case not only shows a cross-section of financial transactions that are becoming internationalized, but also shows various perspectives on capital market regulations. I think that the judgments of the first trial, second trial, and the Supreme Court all have their own arguments, but it something feels off to deny the application of the Capital Market Act simply because the plaintiffs are foreign investors. In the internationalized financial market, it is not awkward to trade based on the KOSPI 200 index as an underlying asset, and in Korea, many derivative products are traded based on stock indices and interest rates from Hong Kong or Germany as underlying assets. If investors suffer losses due to price manipulation or unfair trading, it is awkward to make a difference in the application of the law whether the person who traded the financial investment product is a foreign investor or a domestic investor. However, it is also necessary to be cautious about excessively applying the Capital Market Act to domestic investors, thereby excessively suppressing the business activities of financial companies that have received financial investment business licenses and are conducting business in Korea. The Capital Market Act is a domestic law and a market law that protects the stability and reliability of the domestic capital market and domestic investors, so even if it is the same case, the impact on the domestic capital market can be different depending on who the investor is. Ultimately, I think that the Supreme Court’s decision to reject the plaintiff’s claim by denying the transaction causality is ultimately valid. In civil damages claims, including financial product transactions, there must be a ‘causal relationship’ between the defendants’ actions and the damages suffered by the plaintiffs. Due to the nature of financial transactions, a transaction causality can be presumed, but a transaction causality is not always presumed just because it is a financial transaction. In cases where the plaintiff (investor) and the defendant (the wrongdoer, the price manipulator) do not have direct or indirect conflicting interests, or where the transaction of the relevant financial investment product is conducted regardless of the defendant’s wrongful transaction, the presumption of transaction causality should be considered to be broken in cases where there are “special circumstances.” In this case, it can be seen that there was no assertion or proof of the plaintiffs' transaction causal relationship, and the Supreme Court's decision to dismiss the plaintiffs' claims based on that fact is reasonable.