정보비대칭성하에서 설명의무의 본질에 관한 소고 장외파생상품 설명의무의 제도·경제적 접근을 중심으로

A Study on the Nature of Duty to Explain under Information Asymmetry in 0TC Derivatives Transactions

The financial institution's duty to explain in OTC Derivatives transactions is transactional subordinate duty of cares as the duty to provide customers reasonable information about financial commodity. Recently, there are many cases to ask for liability by breach of the duty to explain in OTC Derivatives transactions in many countries. For this reason, there is a need for effective control over legal risk in the way that investor's claim for the breach of duty to explain in OTC Derivatives transactions. This is because there might be waste of time and economical cost not stopping consumptive argument on that issue without clear arrangement on the duty to explain. In contract theory and economics, information asymmetry deals with the study of decisions in transactions where one party has more or better information than the other. This creates an imbalance of power n transactions which can sometimes cause the transactions to go awry, a kind of market failure in the worst case. Examples of this problem are adverse selection, moral hazard and information monopoly. Information asymmetry models assume that at least one party to a transaction has relevant information whereas the other(s) do not. The nature of duty to explain is to keeping its balance between a consumer and a financial institution and mutual incentives for both financial consumer and institutions under information asymmetry.