키코판결과 설명의무

KIKO(Knock-in Knock-out) Cases and the duty of explanation

The duty of explanation between contracting parties has been accepted in the academic circles in order to guarantee actual liberty of contract, although the Korean Civil Code does not have statutes that govern it. Nevertheless, there is few work providing an implication for defining the extent to which a duty of explanation can be applied. This shows how it is hard to find characteristics and circumstances of each individual contract cases that affect a scope of the explanation duty. As decided by the Korean Supreme Courts in November 2013, The KIKO(Knock-in Knock-out) case can be exemplified to shed light on definition of the explanation duty. KIKO’s contracts are the currency options designed to help companies hedge exchange rate risk associated with the appreciation of the Korean Won beginning in the middle of the 2000 s. However, when the Korean Won depreciated precipitously against the dollar during the global financial crisis in 2008, companies that have signed the KIKO’s contracts filed lawsuits against the banks, claiming that the KIKO’s contracts are invalidated. In these cases, the duty of explanation was a big issue which involves difficult problems. For example, the issue about why business operators rather than consumers should be subject to explanation, and to what range should the bank explain about financial instrument. This study attempts to set a specific standard of explanation duty with recent four KIKO’s cases of the Korean Supreme Court. The Supreme Court recognized that the banks have high explanation obligation about KIKO because of complicated OTC derivative. According to the Supreme Court s decision, there is a finding that the plaintiff companies negotiated proper contract prices, had experience in forward exchange and foreign exchange risk insurance, and were actively involved in the negotiation of the execution time and contract terms with the banks; in this sense, thus, the banks did not violate the suitability rule or its explanation obligation. However, the question arises as to why the Supreme Court did not judge whether the banks explain the imbalanced risk of foreign exchange reserves and put-option or not. A financial instrument seller should not only provide information for the buyer, but also explain important factors on the risk in buyer’s view; and a key of explanation obligation in KIKO cases is the imbalanced risk of foreign exchange reserves between put-option.