파생금융상품 관련 금융회사의 손해배상채무 - 대법원 2011. 7. 28. 선고 2010다76368 판결 -

The decision at issue is a ruling that recognizes a claim for damages in tort against financial institutions that breached their duty to explain and their duty to protect investors. In this case, the plaintiffs invested in beneficiary certificates that were issued and sold by the financial institutions. They earned returns for about three years after the investment initiation, but the 2008 financial crisis caused a sharp decline in value. Some plaintiffs redeemed their beneficiary certificates early and filed claims for damages, while others did not redeem early and brought suit. With respect to the defendants’ joint tort, the trial courts applied comparative negligence differently to the plaintiffs, whereas the Supreme Court held that negligence should be assessed collectively across all joint tortfeasors. However, the same liability discourages the financial institutions that have devoted substantial efforts to internal controls and other measures to protect financial consumers, thereby undermining the incentives of firms that have done more for financial consumer protection. To incentivize more active efforts to protect financial consumers, where multiple financial institutions bear liability for damages, comparative negligence should be applied differentially by institution. The plaintiffs asserted both declaration of intention under mistake and a claim for damages. Because the product used the name ‘derivatives investment trust’ and it is not recognized that the defendants exploited information asymmetry to induce the plaintiffs into a mistake in their investment decisions, the assertion to make the contract void is not available. The issue regarding the claim for damages is whether plaintiffs who did not redeem early can be recognized as having a claim for damages. If beneficiary certificates were not redeemed early, it cannot be said that a loss has actually materialized; therefore, the claim for damages should be recognized only for the plaintiffs who redeemed their beneficiary certificates early. Another question is whether, had there been no breach of the duty to explain, the plaintiffs would have subscribed to time deposits instead, such that lost profits should be recognized from the time of subscription. Pure economic loss should be redeemed when defendants provided incorrect information and knew or could have known that the plaintiffs would make investment decisions based on it. From this perspective, the defendants’ liability for lost profits can be recognized. Calculating damages in this way would provide incentives to financial institutions that actively strive to protect financial consumers, thereby enhancing consumer protection, and by compensating lost profits for breaches of the duty to explain investments, investor protection would be strengthened.