In a case where an employee in charge of Gap corporation, a financial investment business entity, erroneously entered "0.80" won in the order price column when entering a purchase order for the monetary futures frame, and Eul corporation entered the purchase order for part of the purchase order quantity of Eul corporation into a sales contract by offering sales order, the case holding that Gap corporation's error in the purchase price for the purchase order was caused by gross negligence which lacks due care necessary for the transaction, but since Eul corporation's error was used even though it was sufficiently known of the error of the order owner, Eul corporation could cancel the purchase order on the ground of mistake.

In a case where an employee in charge of Gap corporation, a financial investment business entity, entered a purchase order for the currency futures frame into a 80 won "0.80 won" in the order price column, and Eul corporation entered into a sales contract with regard to part of the purchase order quantity of Gap corporation's purchase order, the case holding that Gap corporation may cancel the purchase order on the ground of mistake, on the ground that the purchase order constitutes an error in the important part of the legal act, which is caused by mistake of Gap corporation, and thus constitutes an error in the contents of the legal act, and that Gap corporation did not direct and supervise the employee in charge of the transaction at the futures frame without taking measures to prevent the entry price, but it is a gross negligence that lacks the principle of trade necessary, although it was sufficiently known that Eul's purchase order was caused by the error of the order owner, and it was established by taking advantage of it, and it was possible that Eul corporation's purchase order was traded by selling order several times within a time limit to obtain a difference in the market price.

Article 109 of the Civil Act

Future Deposit Securities Co., Ltd and one other (Law Firm Mapsung, Attorneys Kim Gi-hwan, Counsel for the plaintiff-appellant)

Dongyang Securities Co., Ltd. (Law Firm Sejong, Attorneys Kang Shin-op et al., Counsel for the defendant-appellant)

May 21, 2012

1. The Defendant shall pay the Plaintiff’s future bond securities company KRW 2,375,284,00, and KRW 5,000,000 to the Plaintiff Hyundai Marine Fire Insurance Co., Ltd., as well as KRW 5,00,000 per annum from November 9, 201 to July 23, 2012, and KRW 20 per annum from the following day to the date of full payment.

2. All of the plaintiffs' remaining claims are dismissed.

3. The costs of litigation shall be 1/10 of the portion arising between the Plaintiff’s future deposit securities company and the Defendant, and the remainder shall be borne by the Plaintiff’s future deposit securities company, and the Defendant’s portion arising between the Plaintiff Hyundai Marine Fire Insurance Company and the Defendant shall be borne by the Defendant

4. Paragraph 1 can be provisionally executed.

The defendant shall pay 2,770,784,00 won to the plaintiff future deposit securities company, 5,000,000 won to the plaintiff Hyundai Marine Fire Insurance Co., Ltd., and 5,000,000,000 won per annum from July 20, 2010 to the date on which a copy of the complaint of this case was served, and 20% per annum from the next day to the date of full payment.

1. Basic facts

A. Status of the parties

Plaintiff Future Deposit Securities Co., Ltd. (hereinafter “Smi Securities”) and the Defendant are both financial investment business entities.

B. Details of the instant transaction

1) On October 13, 2008, Canada (RYALK OF PODA) opened an account on the Plaintiff’s future deposit securities and traded US US US US US US dollars gift press through the Plaintiff’s future deposit securities.

2) At the time of opening February 9, 2010 from the Canadian Government on February 8, 2010, the Plaintiff’s future securities was entrusted with the issuance of orders for purchase of 15,000 won (10,000 dollars), 0.90 won at the order price (10,000 dollars), 0.80 won, 0.70 won, 10,000 won and 10,000 won and 10,000 won and 08:50 won immediately before opening on February 9, 2010.

3) On February 9, 2010, around 09:00 on February 9, 2010, three employees in charge of the Plaintiff’s future securities entered purchase orders entrusted by the Korea Exchange derivatives system into the member derivatives terminal of the Korea Exchange, respectively. Of them, KRW 0.80 won in the order price and KRW 15,000 in the employees Nonparty 3, who received orders for purchase of 15,000 contracts, entered “80” instead of “0.80” in the order price column (hereinafter “instant purchase orders”).

4) At the time of the instant purchase order of the Plaintiff’s future deposit securities, the Defendant concluded a sales contract of KRW 80 with respect to the instant futures frame contract of KRW 9,324 with a total of KRW 1.1 won as indicated in the table of this case (hereinafter “the instant transaction”), and the remainder of KRW 5,676 out of the number of orders issued for the purchase of the Plaintiff’s future deposit securities (=15,000 - 9,324) with a future road map asset management company, and a single bank, etc., respectively, concluded a sales contract with a total of KRW 5,676.

5 0: 03: 03: 80: 08: 08: 10: 30: 10: 08: 10: 30: 02: 32280, 09: 40: 08: 08: 108: 1: 08: 1: 308: 10: 1: 308, 12: 12: 3080, 12: 12: 309: 208. 404: 308: 108: 106: 10: 108: 30

C. The circumstances after the instant transaction

1) After the instant transaction, the Plaintiff’s future deposit securities entered into a contract to sell 15,000 won in the order price of KRW 0.90 won in the instant futures frame, and pursuant to the former Derivatives Market Business Regulations (amended by Regulation No. 618, Jun. 23, 2010; hereinafter “Business Regulations”) and the Enforcement Rule of the same Regulation, the Plaintiff filed an application for correction of mistake with the Korea Exchange to correct the instant transaction on the ground that it is an erroneous transaction in the price of the instant transaction.

2) Each sales contract entered into between the Plaintiff’s future deposit securities and the Korea Asset Management Corporation and the Han Bank were to be null and void, and the Plaintiff’s future deposit securities were to return the proceeds derived from deducting fees, etc.

3) On April 30, 2009, Plaintiff Hyundai Marine Fire Insurance Co., Ltd. (hereinafter “former Sea”) concluded an insurance contract with the Plaintiff’s future deposit securities and insurance amount of KRW 5 billion, executives’ liability, and financial institution’s liability for compensation as an insured event. On July 19, 2010, the Plaintiff Hyundai Marine Fire Insurance Co., Ltd. (hereinafter “instant insurance contract”) concluded an insurance contract with the financial institution that covers an insurance accident as stipulated under the said insurance contract (hereinafter “instant insurance contract”). On July 19, 2010, the Plaintiff’s future deposit securities paid KRW 5 billion, the total insurance amount, to the Plaintiff’s future deposit securities.

D. Trends of this case’s futures press transactions at the time of the instant transaction

On February 8, 2010, the market price of the gift press of this case on the day before the trade of this case was 0.80 won, 0.90 won, 0.90 won, 1.00 won, 1.00 won, and 0.80 won, and the low price was 80 won, 0.90 won, 80 won, 0.90 won, 80 won, 0.90 won, 0.90 won, 0.90 won, 0.0 won, and 0.90 won, excluding the trade of this case, but there was little change in the market price of the gift press of this case between January 19, 2010 and February 12, 2010.

(e) The meaning of monetary futures transactions and the method of concluding a sales contract and the structure of pricing;

1) Monetary futures press transaction refers to a transaction based on an underlying asset, i.e., the difference in the prices of the two items in order to simultaneously establish the sale of one item and the purchase of the other item in the same quantity among two items of monetary futures trading of the same underlying asset (Article 2(1)14 of the Business Regulations).

2) The futures press that is traded at the Korea Exchange is separate from the existing futures settlement monthly issue and entered into a trade with the so-called “marketing method.” In the futures press transaction, the price is the price calculated by deducting the price of the instant monthly issue from the price of the original monthly issue. The sale of the futures press means the sale of the original monthly issue and the purchase of the futures press, the purchase of the futures press, and the sale of the futures press (Article 62 of the Business Regulations).

3) The agreed price in futures press transactions is determined by means of “individual competitive transactions based on multiple prices,” i.e., “connection transactions,” and this is the method of concluding a sales contract by applying the principle of price preference and the principle of time preference, which is the first received price at the agreed price in cases where the purchase price is above the sale price at the purchase price (Article 74 of the Business Regulations).

[Based on Recognition] Facts without dispute, Gap evidence 1 through 5 (including the number of each branch; hereinafter the same shall apply), 8 through 10, 20, 21-4, Eul evidence 1, 2, and 7, the testimony of non-party 1 and 2, and the purport of the whole pleadings

2. Determination

A. Summary of the plaintiffs' assertion

The transaction of this case is ① by the rash of the Plaintiff’s future three securities, and the Defendant, despite being aware of the fact, knowingly, has made a profit equivalent to approximately KRW 7.80 to KRW 1.00,000,000 by selling the gift press of this case with approximately KRW 100 to KRW 1.00,000 at the market price. The transaction of this case is null and void pursuant to Article 104 of the Civil Act, or is concluded with the Plaintiff’s future three securities as a juristic act which has considerably lost fairness pursuant to Article 104 of the Civil Act, or with the Plaintiff’s purchase order causing mistake in important parts, and thus, the purchase order of this case was cancelled by the Plaintiff’s expression of intent made immediately after the transaction of this case or by the delivery of a duplicate of the complaint of this case. Accordingly, the Defendant, knowing the error of the Plaintiff’s future three securities, has a duty to return the purchase price received from the Plaintiffs through the transaction of this case as unjust enrichment.

B. Determination as to whether the instant transaction was null and void as an unfair juristic act

1) On the other hand, an unfair legal act stipulated in Article 104 of the Civil Act is established when there exists an objective imbalance between payment and consideration, and a transaction which has lost balance as such objectively takes place using the cryp, rashness, or experience of the victimized party. Here, the term “rash” refers to an in-depth state in which ordinary people do not pay due attention to the outcome of a certain act when deciding to do so (see Supreme Court Decision 2007Da84192, May 29, 2008, etc.).

2) First, as seen earlier, Nonparty 3, an employee of the Plaintiff’s future listed securities, intended to purchase 15,000 won at the order price at KRW 0.80 at the time of the instant transaction, but entered KRW 80 in the course of entering the price into the membership derivatives terminal. Although Nonparty 3 decided to purchase the instant futures frame at KRW 0.80,00, the purchase order was due to Nonparty 3’s erroneous entry into the device in the process of expressing that intention while Nonparty 3 decided to purchase the instant futures frame at KRW 0.80,00, it is difficult to view that Nonparty 3, without due care, has decided to do so in the process of making a decision on the purchase price of the instant futures frame. Rather, it is reasonable to deem that the instant futures frame was an entry number in the display process after the decision.

3) Therefore, the Plaintiff’s assertion on this part is without merit to further examine.

C. Determination as to whether the purchase order of this case was cancelled on the ground of mistake

1) Whether the application of Article 109 of the Civil Act is excluded in the instant transaction

A) The parties’ assertion

(1) The defendant asserts that, in light of the following: (a) the basic structure and characteristics of futures press transactions made through the Korea Exchange’s derivatives trading system; (b) the standardized trading subject is standardized and standardized; (c) the trading partner cannot be identified in any internal trading unlike face-to-face trading; (d) the trading is conducted on a short and long-term basis; (e) only members of the Korea Exchange participate in the trading; and (vi) the cancellation right based on mistake is excluded in Seoul High Court Decision 2004Na68412 Decided June 24, 2005, the gift press transactions including the instant trading are important most of all the protection of trust of the other party; (d) the business regulations and enforcement rules, which are municipal laws and regulations among members of the Korea Exchange, provide for the limitation on futures press transactions; and (e) the provision that the Plaintiff’s future trading may be excluded from the application of Article 109 of the Civil Act, which provides that there is no agreement between the other party to the trading and the Plaintiff’s future trading that caused a correction of entry.

(2) As to this, the Plaintiffs have established a system recognizing the revocation of the transaction of derivatives due to mistake in a foreign country, such as the United States, Europe, and Hong Kong, and in Korea, the Derivatives Market Business Regulations (No. 800 of the Regulation) amended on December 28, 2011 newly established a provision on the relief of erroneous transaction, and there is no express provision excluding the application of Article 109 of the Civil Act with respect to the futures press transaction, such as the instant transaction, inasmuch as there is no express provision excluding the application of Article 109 of the Civil Act, the Plaintiffs should be deemed to protect the trust and safety of transaction through the interpretation of Article 109 of the Civil Act and the application of specific matters.

B) Determination

(1) The right to revoke an expression of intent due to an error may be excluded in cases where the express provision explicitly excludes the application thereof, or where there is an agreement between the parties individually to exclude the right to revoke, or where there is a need to limit the revocation due to mistake in order to protect the safety of transaction.

(2) Examining whether the right of cancellation on the ground of mistake in this case is excluded, the following circumstances are acknowledged by comprehensively taking account of the facts acknowledged earlier and the statement in No. 6: ① there is no provision stating that the application of Article 109 of the Civil Act is excluded with respect to the futures trading; ② the conclusion of a sales contract in the futures frame transactions is made in the way of “individual competitive trading by multiple prices” which continuously establishes the sales contract in accordance with the principle of priority and time when individual quantity is in accord with the sale price offered at the price and the purchase price offered at the price offered at the same time, and thus, it is distinguishable from the “an individual competitive trading method by multiple prices” which is concluded pursuant to the principle of priority and time among the parties to the transaction in advance by concentrating the sale price offered at a certain price and purchase price offered at the time of conclusion of the contract between the parties to the transaction and the “an individual competitive trading method by single price” which is concluded pursuant to the principle of priority and time. ③ Even if the purchase price offered at the time of entry of derivatives does not affect the conclusion of a single trading agreement.

2) Whether the purchase order of this case was erroneously made

As acknowledged earlier, the “80 won” price of the purchase order of this case was significantly different from 0.90 won in the gift press of this case on the day before the trade of this case. In light of the fact that there was almost little change in the price of the gift press of this case before and after the trade of this case, Nonparty 3 attempted to purchase “0.80 won” as to the gift press of this case, but the transaction of this case was conducted by erroneously inputting it into “80 won” in the process of inputting the order price into the device, and thus, the purchase order of this case was caused by mistake of the Plaintiff’s future deposit securities, and constitutes an error as to the important part of the contents of the legal act.

3) Whether there was gross negligence on the Plaintiff’s future deposit securities

A) Summary of the parties’ assertion

The Defendant asserts that the Plaintiff’s future deposit securities had professional knowledge and experience in futures press transactions as members of the Korea Exchange, but did not take measures to prevent the entry of orders in advance, and that Nonparty 3 did not check the contents of orders entered in the purchase order immediately before the purchase order of this case and was grossly negligent due to the Plaintiff’s gross negligence, and thus, the instant transaction cannot be revoked.

As to this, the plaintiffs asserted that there was no sufficient knowledge and experience in futures press transactions since the plaintiff future three-months from September 25, 2009, which began exchange-traded derivatives trading, and that there was no gross negligence since it could not be easily discovered any clerical error in the order price even though the non-party 3 confirmed the contents entered into the device on several occasions before the purchase order of this case was issued.

B) Determination

In determining whether there was gross negligence in the expression of intent, the duty of care should be confirmed in light of the occupation of the actor or the type, purpose, etc. of the actor, and whether there was a mistake that could have been prevented if he had paid such attention (see Supreme Court Decision 9Da64995 delivered on May 12, 200).

In this case, the facts acknowledged earlier and Nonparty 1’s testimony were comprehensively taken as follows: (i) Plaintiff’s future deposit securities are members of the Korea Exchange with the same exchange-traded derivatives transaction; (ii) the purchase order of this case was related to contract 15,000, and the size of transaction was not small; and (iii) Plaintiff’s future deposit securities were not subject to any measure other than the so-called “the so-called “the so-called “the so-called “the one-called one-called one-called one-way one-way one-way one-way one-way one-way one-way one-way one-way one-party one-party one-party one-party one-party one-party one-party one-party one-party one-party one-party one-party one-party one-party one-party one-party one-party one-party one-party one-party one-party one-party one-party one-party one-party one-party one-party one-party one-party one-party one-party one-party one-party one-party one-party one-party one-party one-party one-party.

4) Whether the Defendant used mistake due to gross negligence of the Plaintiff’s future deposit securities

A) Summary of the parties’ assertion

The plaintiffs asserted that even if there was gross negligence on the plaintiff future deposit securities of this case, since the defendant had been aware that the purchase order of this case was an expression of intent due to mistake, the transaction of this case was conducted by smelling a sale order to use it. Thus, the plaintiff future deposit securities of this case can be revoked on the ground of mistake.

As to this, the defendant asserts that the transaction of this case was done within about 15 seconds, a very short time, in the absence of knowledge of who is the other party to the transaction through the Korea Exchange. Thus, the defendant did not know whether the purchase order of this case was caused by mistake and could not be known.

B) Determination

The proviso of Article 109 of the Civil Act, which provides that a mistake in declaration of intention may not be cancelled on the ground of a mistake if it was caused by a gross negligence of the person who made the indication, is to protect the other party's interest. Thus, if the other party knew of a mistake in bad faith and uses it, it shall be interpreted that the other party cannot be protected pursuant to the above provision. (See Supreme Court Decision 428Da321 delivered on November 10, 1955).

As to the instant case, the facts acknowledged earlier and the witness witness’s testimony were comprehensively taken into account, namely, ① the instant transaction is conducted at multiple prices by individual competitive bidding, and the price and quantity of purchase orders and sale orders are indicated on the device screen in real time. Thus, even if the party who has paid the purchase orders through the device screen at the time of the instant transaction did not know the fact that the instant transaction was the Plaintiff’s future deposit securities, the content of the order could have been confirmed. ② The price of the instant gift press was rarely changed before and after the instant transaction. ② The closing price of the instant transaction was 0.90 won. ③ Nonparty 2, the Defendant’s employee, was the Defendant’s employees, and Nonparty 2, the Plaintiff’s future deposit market price was 0.90 won in light of the fact that the first transaction was concluded after the Plaintiff’s payment of the purchase orders, and was directly reduced to the Defendant that it was favorable to the Defendant, and ④ during the process of the instant transaction, the party who has participated in the instant futures market price at least 80.

5) Sub-decisions

Therefore, pursuant to Article 109 of the Civil Act, the purchase order of this case was revoked by delivery of a copy of the complaint of this case containing an expression of intent to cancel the Plaintiff’s future deposit securities.

D. Occurrence and scope of return of unjust enrichment

1) Return of unjust enrichment

Since the purchase order of this case was cancelled on the ground of mistake, the defendant is obligated to return the purchase price acquired in the transaction of this case to the plaintiff future set securities as unjust enrichment, and the plaintiff future set securities are obligated to return the gift press of this case purchased in the transaction of this case to the defendant.

2) Scope of obligation to return unjust enrichment

Since the purchase price to be returned to the Plaintiff’s future 3: KRW 7,459,200 x USD 9,324 x USD 10,00). The Plaintiff’s future 2 was sold to the third party on February 9, 2010, and thus, the Plaintiff’s future 100 won (=0.90 x 9,324 x 10,000 x 100 x 100 x 10,000)’s claim for the return of unjust enrichment against the Plaintiff’s future 10.0 00 - 205 00 - 305 06 - 1000 - 508 00 - 1006 - 3000 - 5000 - 106 000 - 5000 - 2007 - 3005 0003 of the Plaintiff’s future 2001.

3. Conclusion

Therefore, each claim of the plaintiffs is justified within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.

Judges Choi Jong-ho (Presiding Judge)