키코(KIKO) 통화옵션계약 체결 당시 적합성원칙과 설명의무를 위반한 경우 손해배상책임에 관한 판례평석 - 대법원 2013. 9. 26. 선고 2012다1146, 1153 전원합의체 판결을 중심으로 -

Abstract

In a case where a bank violated the suitability principle and duty of explanation when it signed a KIKO currency option contract, a question arises to the matter of responsibility to cover damages. After considering various circumstances and in view of equal division of damages, the High Court limited Shinhan Bank's responsibility to cover damages to thirty percent of the plaintiff company's loss. The Supreme Court ruled that if negligence is set off for acts of taking possession, such as fraud or embezzlement, the perpetrator keeps the illegal profit in the end, in light of the legal principle which says that comparative negligence is disallowed only in cases where it is against fairness or good faith principles, the plaintiff's appeal cannot be accepted. In this paper, we examine the validity of setting off the negligence of a corporation while it can question the suitability principle and the violation of duty of explanation. The plaintiff was aware that it is a speculative contract when he signed the KIKO currency option contract, and in a hypothetical scenario, if the exchange rate declined, the plaintiff would have gained an exchange profit or gained profit by exercising his put option. If in this case the bank and the corporation were on equal footing, it would be reasonable to calculate damages to the bank after setting off negligence of the bank. However, because banks have superior professional knowledge and resources than normal investors in dealings of over-the-counter derivatives, it is necessary to protect the normal investor who trusted and did business with the bank. Since the plaintiff violated the suitability principle and duty of explanation in this case, it committed an illegal act that is a willful violation of the suitability principle and duty of explanation. Because the victim suffered a loss due to a willful, illegal act, the perpetrator's liability for damages was limited to thirty percent, and the bank was awarded seventy percent, the majority of the loss. It is unjust for the perpetrator to be awarded the majority of the loss when the loss was due to an willful, illegal act. Therefore, it is reasonable in this case to conclude that the bank should not be allowed to set off negligence of the corporation.