(영문) 서울중앙지방법원 2011.11.24.선고 2010가합51302 판결

The defendant shall pay to the plaintiff 106,186,352 won with 5% interest per annum from October 9, 2009, to the delivery date of the application for amendment of the claim of this case, and 20% interest per annum from the next day to the full payment date.

Reasons

1. Basic facts

(a) Issuance of stock-linked securities;

1) The HH Asset Management Co., Ltd. (hereinafter referred to as 'Hah Asset Management') collected funds from investors, including the Plaintiff, and created an investment trust in the name of 'Two-Sar VI Derivatives Investment Trust 1' (hereinafter referred to as 'the instant investment trust').

2) On October 11, 2007, Modern Securities Co., Ltd. (hereinafter referred to as "Modern Securities Co., Ltd.") issued a stock-linked securities (hereinafter referred to as "Modern Stock Linked Securities") under the name of "Modern Stock Linked Securities Co., Ltd. (hereinafter referred to as "Modern Stock Linked Securities")" (hereinafter referred to as "Modern Stock Linked Securities"), which is separate from the stock-linked Securities in this case, and entered a common meaning of stock price-linked Securities into "ES". The stock-linked Securities of this case is called Samsung Electronic Co., Ltd. (hereinafter referred to as "Modern Electronic") and New Financial Co., Ltd. (hereinafter referred to as "Modern Stock Co., Ltd.") with common share as an underlying asset, with a maturity of two years and early repayment opportunity every six months, and with a structure of 10% difference between the stock price fluctuations and the yield loss rate of two underlying assets, which is set as the first condition for redemption (14% difference).

A person shall be appointed.

3) On October 10, 2007, the Plaintiff invested KRW 200 million in the instant investment trust. The Ha Asset Management concluded the instant stock-linked securities underwriting contract with Hyundai Securities, and used the entire investment amount of the instant investment trust as the acquisition price of the instant stock-linked securities. Since the instant investment trust and the instant stock-linked securities are the same major contents (such as redemption terms, base price determination date, early redemption date, and maturity redemption date, etc.), the decision on the profit of the instant investment trust was made based on whether the instant stock-linked securities accrue.

B. Modern Securities (HH 3) Trading 1 of the instant stock-linked Securities was charged with the risk of paying a certain amount in the event that the early redemption condition of the instant stock-linked Securities is satisfied or the conditions of the agreement are satisfied at maturity. To avoid such risk, on October 10, 2007, the Defendant entered into a swap contract with the Defendant for the purchase of derivatives of the same structure as the instant stock-linked Securities (hereinafter referred to as “the instant swap contract”). Specifically, Mod Securities traded back to bak hedge 4) in response to the total issuance amount of the instant stock-linked Securities (2,978,000,000 won, which is 2,978,000,000 won, and purchased the instant stock-linked Securities with the Defendant in response to the risk-linked Securities (hereinafter referred to as the “instant stock-linked Securities”).

3) Meanwhile, as part of the swap contract in this case as part of the lawful and essential hedge strategy, the Defendant may sell and purchase a large number of shares in order to neutralize the market risks during the swap contract period, and such sale and purchase of shares may take place immediately before the evaluation base date, and may bring about a decline in the stock price by the Defendant’s sale and purchase of shares, and thereby, may incur loss of the agreed amount to be redeemed.

1) The instant stock-linked securities led to October 7, 2009 (hereinafter referred to as “the base date of this case”) which was the date of determining the base price at maturity without fulfilling the terms of redemption (defluence). On the base date of this case, the instant stock-linked securities was set at KRW 700,000 (552,00) much more than the base price (52,00), and there was no problem in meeting the terms of redemption (414,00,000, more than the base price). However, since the new stock-linked common share price fell at KRW 45,00 (60,868,00), it was problematic whether the redemption conditions (65,651,000, more than the base price (60,868,000) were met).

2) On the other hand, on October 7, 2009, the Defendant requested the sale of 300,000 shares of new and new common shares with respect to 08:16 treatment securities and NP PP securities (hereinafter “BNP securities”) respectively. The treatment securities sold 256,386 shares of new and new common shares on the instant base date, and 247,550 shares of 247,936 shares in total.

3) Specifically, the single unit trading time (14:50:00 to 15:00:00) on the base date of the instant case is between 14:50 and 15:00).

In other words, treatment securities and BNP securities were sold orders with the following contents as to new common shares: ① 14:52:21 BNP securities; ② 14:52:25 BNP securities; ② 52,450 BNP securities are sold orders; ② 14:53:45 BNP securities; ② cancellation of sales orders; ④ 14:54:38 BNP securities; ⑤ 15,000 PNP securities are sold orders; ⑤ 14:56:11 BNP securities; 5,000 PP securities are sold; 6:2,960 PP securities; 7:28; 200 PP securities; 7:200 PP securities; 84:40; 894; 15:304; 405; 404; 15:404; 194; 405; 304; 405,404; 1404; 304.4. 1.40

§ 32(d).

4) The new common share price on the instant base date was set at KRW 45,800,00, which was the base price for the redemption condition of the instant stock-linked securities, prior to the single trading hour, and the final closing price was determined at KRW 45,450,00, which was 45,000, which was 45,000, and ultimately, the repayment condition of the instant stock-linked securities was not satisfied.

D. Loss of principal of stock-linked securities of this case

1) The instant stock-linked securities not only fall under the case where the maturity date of new and new common caution, one of the underlying assets, falls short of 75% of the initial base price, but also, there was a difference between the lower and lower and lower than the maturity date (the initial base price x 60% below the maturity date) by the date when the stock price of the underlying asset was determined.

2) Accordingly, the Plaintiff suffered investment loss by KRW 149,813,648, which falls short of the invested principal (200 million) on October 9, 2009, due to receipt of the maturity repayment of KRW 149,813,648, which falls short of the maturity of the instant investment trust (based on recognition) (based on recognition), and there is no dispute over the investment loss by approximately 25% (based on recognition), the entries in Gap-1 through 7, 9, 10, 12, 3, 4 through 6, 8, and 10, and the purport of the entire pleadings,

2. The parties' assertion

A. The plaintiff

1) The Defendant, during a single time period of sale, sold new shares, which are the underlying assets of the instant stock-linked securities, to the market price at a large price, thereby forming less than 45,651 won, which is the base price for redemption at maturity. The act of selling the instant shares constitutes an illegal market price in violation of Article 176(4)3 of the Financial Investment Services and Capital Markets Act (hereinafter “Capital Markets Act”) or an fraudulent illegal transaction in violation of Article 178(1)1 of the Capital Markets Act. Furthermore, the Defendant interfered with the fulfillment of the terms of redemption of the maturity redemption of the instant investment trust by intentionally or by negligence by preventing the redemption of the instant stock-linked securities from meeting the redemption condition of the instant stock-linked securities. This constitutes an act of infringement on claims by a third party other than the parties at disadvantage due to the fulfillment of the terms and conditions, or infringing on the Plaintiff’s right to claim reimbursement of maturity maturity. Accordingly, the Defendant is liable for damages due to a tort against the Plaintiff.

2) As the Plaintiff had no market price manipulation, it was paid KRW 20 million with the maturity redemption of the instant stock-linked securities and KRW 56,00,000 with the interest rate of KRW 14% per annum, which was agreed upon with the instant investment trust as the maturity redemption condition for the instant stock-linked securities. It was actually paid KRW 149,813,648 with the maturity redemption on October 9, 2009, and thus, the Defendant’s tort amount of damages due to the Defendant’s tort was 106,186,352 won (= 256,00,000 - 149,813,648 won). However, it was justifiable to view that the Defendant’s act of selling the instant stocks was based on the sale of deel stocks after the deel hedging, and thus, it should not be considered that it would have been a sort of net asset price manipulation calculated based on the de de de de de de de de de de de de de de de de de de de de de de de de de de de de share share trading trading trading value.

4) Even if the act of selling the instant shares constitutes a hedge transaction of underlying assets arising from the issuance and acquisition of the ES products, the act of selling the instant shares cannot be justified on the ground of such act, and whether it was unfairly involved in the formation of the share price should be determined on the basis of whether the act of selling the instant shares was unlawful. However, the Defendant’s act of selling the instant shares constitutes an act of selling the instant shares, which constitutes an artificial stock price, and constitutes an act of selling the instant shares, and thus, constitutes an act of selling the instant shares, and thus, constitutes an act of selling the instant shares, and thus, constitutes an act of selling the instant shares. Furthermore, the act of selling the instant shares constitutes not a hedge transaction but a speculative transaction. Therefore, the act of selling the instant shares constitutes an unlawful act of selling the instant shares.

B. Articles 176(4)3 (Prohibition of Market Price Manipulation) and 178(1)1 (Fraud) of the Capital Markets Act shall not apply to the instant act of selling shares. Moreover, the instant act of selling shares was committed on the basis of the de de facto hedging rule as a product that can exist only under the premise of de facto hedging, and is justifiable as the instant act of selling shares was committed on the basis of the de facto hedging rule. Moreover, the Defendant had no intention to lower the share price as it made efforts to minimize the impact on the share price on the base date of the instant case, while making a stock transaction in accordance with the de facto hedging principle. Accordingly, the Defendant did not commit tort.

3. Issues of the instant case

A. Relevant legal principles

The term "securities trading" under Article 188-4 (2) 1 of the former Securities and Exchange Act means trading that is likely to cause an artificial change in the market price and trading volume to be formed in a free competition market due to normal supply and demand(see Supreme Court Decision 2003Do4320, May 11, 2006). The purpose of fixing or stabilizing the market price of securities is not only to fix or stabilize the current market price of securities, but also to recognize that an actor forms a certain price and fixs or stabilizes the market price. If an actor has traded securities for such purpose, the trading is not required to continue to do so for a certain period, but also to meet the requirements of Article 188-4 (3) of the former Securities and Exchange Act (see Supreme Court Decisions 2003Do4320, Oct. 28, 2004; 2002Do31814, Jul. 18, 200).

B. The key issue of the instant case is ① (i) whether Article 176(4)3 of the Capital Markets Act prohibiting market price manipulation in trading new common shares, which constitute underlying assets of the instant stock-linked securities, applies; and (ii) if the above provision applies, the objective requirement to constitute a tort (in light of the aforementioned legal principles, the act of selling the instant stocks must be an artificial manipulation, not a normal demand or supply due to market factors) in other words, whether the act of selling the instant stocks can be deemed a transaction for de facto hedging (specific, whether the act of selling the instant stocks constitutes a normal demand or supply due to market factors, not an artificial factor,); (iii) subjective requirements (the intent of the Defendant to change or fix the market price of the instant stocks to the Defendant); and (iv) whether the purpose of selling the instant stocks is to fix or stabilize the market price of the instant securities in order to the Defendant in selling the instant stocks).

4. Determination

A. Determination on the cause of the claim

As seen earlier, the Defendant’s act of selling the instant shares was conducted, and the new Dok-based share price, which is an underlying asset of the instant stock-linked securities, was formed at KRW 45,651,00,00, which is 45,651,00,000, which is 45,651,000, which is 45,000, which is the base price for redemption at maturity, brought about the Plaintiff’s loss of the investment principal. However, in light of the circumstances found in the following sub-paragraph (b) or (e), it is insufficient to view the above facts alone that the Defendant changed or fixed the price of new Dok-based common share price below the base price for redemption through artificial factors, and there is no other evidence to acknowledge otherwise. Accordingly, on the premise of the Defendant’s illegal market price manipulation, such an act constitutes an fraudulent transaction under Article 178(1)1 of the Capital Markets Act, or an act unreasonably interfering with the fulfillment of the redemption condition of the investment trust of this case, or an act by a third party’s claim.

B. Whether Article 176(4)3 of the Capital Markets Act applies to a stock transaction, which is an underlying asset of the ESS

1) Relevant statutes

Article 4 (Securities)

(1) through (Omission)

(7) The term "frequency-combined securities" in this Act means instruments bearing the indication of a right to determine the amount paid or recovered according to predetermined methods in connection with fluctuations in the prices, interest rates, indexes, units, or indexes, etc. based thereon.

Article 176 (Prohibition on Market Price Manipulation, etc.)

(1) through (3)

(4) No one shall commit any of the following acts in connection with trading listed securities or exchange-traded derivatives:

3. Causing a fluctuation in, or fixing, the market price of securities linked to certain securities prescribed by Presidential Decree with an intention to earn, or cause a third party to earn, unjust profits from trading such securities (Scope of Linked Securities) under Article 207 of the Enforcement Decree of the Capital Markets Act.

The term "securities specified by Presidential Decree" in Article 176 (4) 3 of the Act means the following securities:

1. through 3. (Omission)

4. Securities based on an underlying asset of derivative-combined securities falling under any of the following items, in cases where the purpose is to earn unjust profits or to enable a third party to earn unjust profits from trading derivative-combined securities:

(a) Equity securities, bonds with warrant, or exchangeable bonds (limited to those that may claim an exchange with those under items (a), (c), or (d));

(d) Securities depository receipts;

2) Article 176(4) of the Financial Investment Services and Capital Markets Act provides that "no person shall commit any act falling under any of the following subparagraphs in connection with the trading of listed securities (A) or exchange-traded derivatives (B)," and subparagraph 3 of the same paragraph provides that "an act of changing or fixing the market price of securities (E) prescribed by Presidential Decree, which is linked to securities (D) with intent to earn, or cause a third party to earn, unjust profits from the trading of securities (C)" means the same securities (C) and (D), (E), and (F) means the securities listed in the items of subparagraph 4 of Article 207 of the Enforcement Decree of the Financial Investment Services and Capital Markets Act. However, (C) does not mean only "securities" as "securities, and therefore, the stock-linked securities of this case, which are non-listed securities, are included in the stock-linked securities, and it constitutes subparagraph (E) of the same paragraph.

3) As to this, the Defendant asserts to the effect that Article 176(4)3 of the Capital Markets Act cannot be applied to this case since (A), (C), and (C) refer to the same subject, and (C) refer only to the “listed securities”, and thus, the instant stock-linked securities, which are non-listed securities, do not fall under subparagraph (C) and thus are not subject to the application of Article 176(4)3 of the same Act. However, as seen earlier, the Defendant’s assertion in this part is rejected.

4) Therefore, Article 176(4)3 of the Financial Investment Services and Capital Markets Act applies to the transaction of stocks, which are underlying assets of the ES. As such, it is examined as to whether the instant act of selling stocks constitutes an act of changing or fixing the market price as stipulated in the aforementioned provision. In light of the following circumstances, it is difficult to deem that the instant act of selling stocks constitutes an artificial market manipulation factor, and there is no other evidence to acknowledge it as such, rather than that it constitutes an ordinary stock transaction in accordance with the delta hedging method, in light of the overall purport of the evidence duly admitted as a whole.

1) The appearance, distribution, and utility of the ESS

A) The ES is a type of structuralized securities based on an underlying asset of the index, bonds, stocks, etc., and the investment return (principal or interest) is determined by linking the price of a specific share certificate or the change in the price index. It is developed to seek a higher profit from the appropriate risk level in order to provide investors who intend to raise a relatively high profit within a certain risk range with the possibility of selecting a third party other than deposits or stocks.

B) In the case of ESS issued in Korea, the rate of principal loss from among 61.9 trillion won (0.65 trillion won) due to the total amount repaid from 2003 to 2008 shall be 1% (in the case of ESS products), and 99% due to the fulfillment of the terms of early payment or redemption at maturity, the contractual profit was accrued or at least principal was repaid. Meanwhile, the issuance of ESS has been recovered in the last half of the year of 2008, but it continued to have been recovered after the 2010 won, and the issue amount in 2010 reaches 24.3 trillion won.

2) As seen earlier, as seen earlier, the structure that pays agreed profits when the underlying asset does not fall below the base price. As such, the financial institution that issued the ES needs to avoid risks arising from the issuance of the ES and to secure the financial resources for redemption of the ES. To this end, the financial institution manages the risks arising from the price fluctuation of the underlying asset (the stocks listed in the ordinary exchange) by trading the underlying asset of the ES using the financial method called the so-called “deel hedging.” At the same time, the financial institution manages the risks arising from the price fluctuation of the underlying asset and at the same time utilizes the profits gained in the course of the transaction as the financial resources for redemption of the ES.

(iii) the principles and methods of deel hedging;

A) As a unit expressing the sensitive value of options for the price change of underlying assets, deel holds an adequate quantity of underlying assets to cancel the risk of price fluctuation based on the deel value is the basic principle of deel hedging. Inasmuch as the nature of Els is an option with the nature of derivatives, the method of applying dete hedging in the process of options trading is examined as to the method of applying dete hedging in the process of options trading.

B) For example, in the context of the model of deel hedging (where deel value is fixed), under 100, A sold the exercise price to A Company 2,000, under the circumstances of 100, and in the event that the deel value at this time is assumed to be 0.6, A sells options in accordance with the deel value and acquires 1,200 shares of A Company.

First of all, when the A company’s stock price has increased from 100 to 110 won, there is a high possibility of exercising a call option, so the deel value is increased by 6 won (=10 won X deel value 0.6) only, and the A bears 6 won per share due to the sale of call option, thereby incurring a total of 12,000 won per share through options transaction (=6 won X2,000 shares). At the same time, however, for benefit, profits and losses are maintained as zero, since the A company’s stock price purchased at a rate of 1,200 to 10 won per share, which is considered as 12,00 won per share for benefit.

On the other hand, if the A-company shares fall from 100 to 90 won, the value of the A-company shares falls below six won per share as the possibility of exercising the call option is low, and the A-company shares take advantage of the profit of 12,000 won per share due to the sale of call options. However, at the same time, since the A-company shares purchased for the purpose of hedging up to 12,00 won per share, the profit and loss still remains 0.

C) Examples of deel hedging (if the deel value changes)

However, since the dedele value continues to change according to changes in various variables such as the price and maturity, financial institutions should frequently adjust the holdings of underlying assets. In other words, financial institutions for such adjustment are bound to continue to engage in transactions on underlying assets. In other words, under the foregoing premise, where the dedele value of A company’s stocks increases from KRW 100 to KRW 110,00, the dedele value of call options increases from KRW 0.6 to KRW 0.710. Accordingly, the number of stocks A held in the dedele position increases from KRW 1,200 to KRW 1,400. The A needs to additionally purchase 200 shares equivalent to the dedele value that corresponds to the dedele value increased as above for dedele hedging (0.1 x 2,00 shares) and adjust the shares to KRW 1,200 to KRW 1,400.

On the other hand, when the shares price of a company A has decreased from 100 to 90 won, the deel value of call options has been reduced from 0.6 to 0.5. Accordingly, Gap sells 200 shares corresponding to the deel value reduced as above for the deel hedging (0.1 x 2,00 shares), and there is a need to adjust the shares to 1,200 shares from 1,200 shares.

D) A financial institution that carries out deel hedging with regard to the beneficiary structure examples of deel hedging-linked securities requires a financial institution to prepare financial resources for redemption by creating profits at the same time hedging risks through a low-price purchase and high-priced sale in accordance with the deel hedging principle. To explain this, it can be seen that, at present, a financial institution gains 10,000 won (10,000 won at put options, 10,000 won at put options, 0,000 won at put options, 0.5, 0.7 on the first day, 7 days at maturity, and 10,000 won at the end of each day, and that a financial institution purchases one (100,000,000 won at put options) at the end of each day, as shown in the following Table 12, gains 50,900 won at the maturity of each transaction through deel hedging.

A person shall be appointed.

E) In the actual transaction, when multiple market variables are entered in the computer program in which a derivatives pricing model is inherent, the deel value and the amount of underlying assets to be held by financial institutions accordingly are calculated. In addition, in practice, in order to save hedge costs, it is being used in a pooling method that manages risks arising from an underlying asset of the same kind in a single pool to calculate the deel value in a single pool. According to a pooling method, the deel value is calculated at a certain period according to the financial institution’s own standards, and the actual transaction is able to make a stock transaction with discretion within the scope of risk without completely complying with the stock holdings and the de de dete value.

F) In the case of simple options17, which are characterized by the dedele value in the wife near the base date for redemption, the dedele value has been set between 0 and 1. Therefore, there is no big change in the trading volume to dedele hedging. However, in the case of ES, which is a digital option 18), it appears that the redemption base date has changed rapidly, and that the dedele value has changed rapidly and rapidly, and that the dedele value has decreased rapidly. The reason is that the structure of ES structure (in the case of the instant stock-linked securities, the rise of KRW 45,651, 100 per annum, 100 per annum, 100,000,000,000,000 won, which is a new common maturity date for redemption, is 10,000,000 won or more, or 10,000,000 won, which is less than 10,000 won.)

In applying the instant stock-linked securities, the Plaintiff may obtain profits equivalent to 14% per annum when a 45,651 won (1 billion won), which is the base price for redemption at maturity on the instant base date, from an ordinary share holder (45,651 won). However, even if the share price falls below KRW 10 million, the Plaintiff suffers losses to the investment principal, thereby causing a significant difference in the amount received due to the change of the share price, thereby resulting in a significant change in the value of the options, and thereby, bring about a significant change in the value of the options exceeding 1. Accordingly, the Defendant, who is a de facto hedging, refers to an option of structure that makes it difficult to gain profits from the base date of the instant case, depending on the de de facto value calculated, has a very large number of shares, while the Defendant cannot sell shares before the end of the instant base date, as it is not obliged to sell shares to the investors, regardless of whether the redemption price at maturity is fully determined between the base date of the instant case and the underlying asset price at issue.

(iv) the need for deel hedging

A) Financial institutions are obligated to manage risks through hedge in order to ensure the soundness of asset management. This is a statutory obligation under the former Securities and Exchange Act as well as the Capital Markets Act. In particular, over-the-counter derivatives are subject to the maintenance of the total risk amount due to trading of over-the-counter derivatives within the scope of risks, taking into account such risks, and establishing a system for risk management. Therefore, in the case of financial institutions dealing with derivatives, managing and hedging risks arising therefrom are the duty to maintain and secure financial soundness in light of the public nature of financial institutions that have the duty to protect the customer’s entrusted property. In other words, even in the case of trading related to stock-linked securities, risk management must be conducted so that the underlying asset is not exposed to the market risk, and the method is carried out by the de facto hedge method.

B) If so, it is not only a hedge method that is deemed necessary to be a premise for the issuance of the ESS as well as a hedge method that is legally enforced for the soundness of the financial institution’s asset management. In addition, the market price formed by the hedge trading shall be deemed as a normal supply and demand based on market factors, and it is difficult to readily conclude that the stock trading due to the de facto hedge is an artificial market manipulation solely on the basis of the fact that there are many and small differences in the influence of all stock trading and that it is an element that affects the stock price of the stock market.

(v) countermeasures against the risks of any change in the stock value of underlying assets due to deel hedging;

A) However, it is inevitable to affect the stock price, which is a underlying asset of the stock-linked securities held by a financial institution, as a matter of course, and may affect the redemption conditions of the stock-linked securities due to the decline of the stock price due to the delta hedging as in the instant case. Accordingly, the financial institution must ensure that investors are aware of such risks in advance by notifying the risks arising from the characteristics of the delta hedging.

B) In concluding the instant swap contract between Hyundai Securities, the Defendant stated that “the Defendant may sell and purchase a large number of shares in order to neutralize market risks during the swap period as part of the lawful and essential Hague strategy, and such sale and purchase of shares may take place immediately before the base date of appraisal as to whether the terms and conditions have been fulfilled, which may result in a decline in the stock price, and that this may result in the Defendant’s sale and purchase of shares, and that modern securities may incur losses from the agreed amount payable.” As such, since the Defendant notified Hyundai Securities of the change in the stock price of underlying assets arising from de facto hedging, it is reasonable to deem that the Hyundai Securities was well aware of the risk arising from de facto hedging (i.e., whether the Ha Asset Management or Hyundai Securities was notified of the risks arising from de facto hedging against the Plaintiff, even if the Ha Asset Management or Hyundai Securities did not notify the Plaintiff of such risks, it cannot be deemed that the Plaintiff and the Defendant did not directly have any duty to notify the risks to the Plaintiff).

D. Whether the Defendant faithfully performed the purchase and sale of shares in accordance with the deel hedging

In light of the following circumstances, the aforementioned facts and the purport of the entire arguments, which can be acknowledged by comprehensively taking account of the following facts, the instant act of selling stocks constitutes a stock transaction based on the delta hedging and constitutes a normal demand and supply due to market factors. Therefore, it cannot be deemed that the Defendant changed or fixed the new common share price through the instant act of selling stocks.

1) Whether the Defendant’s act of selling the instant shares constitutes a transaction by deel hedging

The Plaintiff asserts to the effect that the Defendant’s determination of the quantity of shares to be held on a specific day according to the delta value that is computed by a specific day constitutes a kind of speculative transaction, not logically inconsistent with the delta value, and that the instant act of selling shares constitutes a kind of speculative transaction, and is merely a prior liquidation of the hedging value, not a normal delta hedging value. However, the Plaintiff’s assertion that the instant act of selling shares constitutes a method of offsetting the amount of shares held in kind according to the delta value change, thereby maintaining the de facto neutrality by offsetting the profit and loss of options and the profits and losses of the shares in kind by offsetting the amount of shares held in kind, and thus, the hedging transaction based on the delta hedging value is entirely offsetting the amount of shares held at a specific time, and thus, it cannot be deemed that the Defendant’s determination of the quantity of shares to be held on a specific day according to the deton value calculated by a specific class 2 cannot be deemed to be contrary to the Plaintiff’s assertion that it would be in accordance with the concept of delta value of shares held.

2) Statement of Deteace for the General Shares underlying assets of the new common shares.

During the period from September 18, 2009 to October 8, 2009, the entire deel hedging content of the ES swap contract, etc. (Evidence No. 4) that the Defendant operates as an underlying asset of the new common stocks of the local government, is as follows, and the Defendant has almost little quantity of stocks calculated according to the deel value:

A person shall be appointed.

3) Before the instant base date, the Defendant purchased new common shares of 477,000 shares based on the dedele value changed during three business days from October 1, 2009 to October 6, 2009, prior to the instant base date.

4) The details of new shares trading on the instant base date

A) In accordance with the principle of deel hedging, the Defendant had to sell 653,313 shares (=739,460 shares - 86,147 shares), which are the difference between 86,147 shares and 86,147 shares (i.e., 739,460 shares - 86,147 shares) held by the Defendant on October 6, 209, the business day immediately preceding the base date of the instant case, when the date of the instant application was reached.

B) Accordingly, on October 7, 2009, the Defendant requested the sale of 600,000 won in total by 300,000 shares each of the new and new common shares of GNP securities and GNP securities.

C) Meanwhile, the Defendant has faced risks to various derivative financial instruments based on the underlying assets of the new common shares, and if limited only to the stock-linked securities of this case, the delta value becomes zero after the end of the base date of this case (i.e., the stock-linked securities of this case are terminated at the maturity date of this case, and thus, there is no need to take the delta hedging from the next day). As a matter of principle, the number of new common shares holding, which are underlying assets related to the stock-linked securities of this case, should be zero. However, as of October 6, 2009, only the stock-linked securities of this case were calculated (i.e., the number of new common shares held by the Defendant without considering other Els except the stock-linked securities of this case) as of October 6, 2009 (i.e., the number of new common shares held by the Defendant is nearly 617,089,222).

D) The total trading volume of new common shares on the instant base date is 2,651,528 shares. The treatment securities sold 256,386 shares (9.67% out of total trading volume) and BNP securities sold 247,550 shares (9.34% out of total trading volume) respectively. This constitutes sale under the Defendant’s instruction (which does not exceed 10% of total trading volume).

E) The total trading volume of the new common share during the single unit trading period of the instant base date is 256,010 shares. During the said single unit trading period, the treatment securities are 25,960 shares (10.1%) and the NAP securities are 25,000 shares (9.76% out of the trading volume). It is difficult to view that the treatment securities and BNP securities were sold new common share because they are concentrated on the trading volume of the instant base date in light of the treatment securities and the trading volume of BNP securities.

F) The determination of the fulfillment of the terms of redemption of the instant stock-linked securities is determined by the closing price as of the base date for redemption. As such, the deteel value changing from time to time shows a big change in the unit trading hours in which the closing price is determined, and accordingly, the sale of stocks due to deteel hedging is bound to focus on the single unit trading hours. However, as it is practically impossible to sell all stocks required to sell during the single unit trading period due to reasons such as restrictions on trading volume, it is only a partial quantity divided and sold between the day before or after the connection trading, and it is difficult to maintain the soundness of asset management in that the method of selling the relevant quantity by means of the out-time trading after the expiration of the term is unclear whether the sales contract is concluded and the risk arising from changes in the stock market after the expiration of the term.

E. Whether there was an intention to change and fix the market price to the Defendant

In light of the following circumstances revealed by the above facts and the evidence revealed, it is insufficient to view that there was a purpose to change or fix the closing price of the new and new common caution to the Defendant below the redemption price, and there is no other evidence to prove otherwise.

1) Under the principle of deel hedging, the Defendant was required to sell 653,313 common shares per new shares on the expiration date of the instant case.

2) Accordingly, on October 7, 2009, the Defendant requested to sell 300,000 won each of the new and new common shares with respect to the securities and BNP securities. Specifically, the Defendant instructed each securities company to sell 300,000 per each of the new and new common shares to the average of the trading volume (VWAP 23) within the extent not exceeding 10% of the total trading volume of each new and new common share.

3) The total trading volume of new common shares on the instant base date is 2,651,528 shares. The treatment securities sold 256,386 shares (9.67% out of total trading volume) and BNP securities sold 247,550 shares (9.34% out of total trading volume) respectively. This constitutes sale under the Defendant’s instruction (which does not exceed 10% of total trading volume).

4) The total trading volume of the new market share during the single provisional sale period of the instant base date is 256,010 shares. During the above single provisional sale period, the treatment securities are 25,960 shares (10.1% out of the trading volume) and the 25,000 shares (9.76% out of the trading volume) were sold. The 23th base date of the instant case is the price calculated by dividing the total trading amount during a specific period into the total trading volume (5WAP, Vloe-eage Pcece) by the total trading volume, and is known in the way of minimizing the impact on the market due to the purchase and sale order.

In light of the trading volume of treatment securities and BNP securities, it is difficult to view that treatment securities and BNP securities have sold new common shares with a focus on a single trading hour.

5. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges

The presiding judge, full-time judge

Judges Park Jae-sik

Judges Lee So-young

Note tin

1) The stock-linked securities are the securities of structural value based on an underlying asset of index, bond, stock, etc.

As a kind of financial investment instrument, investment returns (principal or interest) are determined in connection with changes in the price of specific stock certificates or the price index of stocks.

2) Around March 2009, the first-based common share price of new shares was changed to KRW 60,868,000 following the offering of new shares with capital increase in early 2009.

3) Hegege means an attempt to eliminate risks arising from changes in the price of assets that an investor owns or intends to own in the future.

mean, the purpose of the Hague is not to maximize profits, but to prevent losses arising from price changes (pre-determination of NAN knowledge).

(iv)in the case of back back hedge, purchase from the other party the same product without directly hedging risk by the issuer;

shares, bonds and derivatives directly issued by the issuer, on the other hand, internal hedge directly exceeds the other party’s liability for repayment.

(b) make the goods identical to the goods sold by the use of this section, and make the goods sold, through the counter transaction.

5) On the other hand, the closing price of October 6, 2009, which was KRW 44,500, 198, 200.

6) According to the following provisions, 10 minutes from the end of the stock market to the end of the 10-day period from the end of the 10 minutes to the end of the 20-day period:

The closing time is the single time when the sales contract is concluded in a single price.

Article 23 of the Regulations on Business of the Korea Stock Exchange (Individual Competition at a Single Price)

(1) The determination of any of the following prices shall be based on the individual competitive trade by a single price:

4. Price at the time of termination of the project;

Article 35 of the Enforcement Rule of the same Regulation (Scope of Single-Sum Trading Participation Price)

Pursuant to Article 23(2) of the Regulations, the scope of the quotations participating in the individual competitive trade at a single price shall be the time prescribed in the following subparagraphs:

shall be the head of the family received at the time, and if there is any head of the family which received prior to the transaction, it shall include the head of the family, if any.

3. In the case of determining the price in accordance with Article 23(1)4 of the Regulations, it shall be from ten minutes to the end of the Chapter;

8) Even if the Defendant’s assertion is correct, the Defendant intentionally committed market price manipulation on the underlying assets of the instant stock-linked securities.

The defendant is not a capital market law but a general illegal act.

19) Call option means the right to live at the exercise price set in advance prior to the expiration or maturity date of a specific underlying asset;

10) For the purpose of explaining the dedele value 0.7, the value of the shares was voluntarily selected for the purpose of explaining the dedele value as it was assumed to 0.6 under the status of 100.

It is the numerical value.

11) put options refer to the right to sell specific underlying assets at an exercise price set in advance prior to the maturity or maturity date.

12) The prices, figures, etc. listed in the list are all values produced voluntarily for the convenience of understanding.

13) The number of stocks to be held = deel value X 100 shares

14) The number of shares purchased = the number of shares held on the day before - the number of shares held on the day.

15) Stock purchase cost = Number of shares held in X occupancy

16) Cumulative profit and loss = Stock purchase cost (1) + Stock purchase cost (2).. + Stock purchase cost (7) and cumulative profit and loss are negative (-). The meaning of cumulative profit and loss is profit and loss to the hedge party.

It means that it has been created.

17) Call options or put options.

18) If the value of underlying assets is determined by the parties to an option agreement, the amount of profits determined in advance and the amount below the determined level;

19) Article 166-2 of the Capital Markets Act (Trading, etc. of Over-the-counter derivatives)

(1) An investment trader or investment broker shall engage in investment trading or brokerage business of over-the-counter derivatives in the following business:

shall comply with the criteria of each subparagraph.

2. The amount of risks from trading over-the-counter derivatives shall not exceed the limit prescribed and publicly notified by the Financial Services Commission;

3. Suspension of trading of a new over-the-counter derivatives until the shortage of net operating capital falls short of twice the total weight;

to carry out only the business related to the settlement of outstanding transactions or the risk avoidance;

5. Monthly trading of over-the-counter derivatives and details of trading of brokerage, intermediary, or agent shall be reported to the Financial Services Commission by the 10th of the following month.

자본시장법 제31조(경영건전성기준)

(1) A financial investment business entity shall ensure soundness in the following matters determined and publicly announced by the Financial Services Commission to maintain soundness in management:

The standards shall be observed, and an appropriate system therefor shall be established and implemented.

Other matters prescribed by Presidential Decree as necessary for securing the soundness of management.

자본시장법시행령 제35조(경영건전성기준)

(1) "Matters prescribed by Presidential Decree" in Article 31 (1) 4 of the Act means the following matters:

1. Matters concerning risk management;

Financial Investment Business Regulations Article 3-42 (Risk Control System)

(1) A financial investment business entity shall establish a system for risk management, such as awareness, assessment, surveillance, and control of all risks arising from various transactions in a timely manner.

required by the corporation.

(2) In order to efficiently control risks, each financial investment business entity shall appropriately establish a limit on risk burden by department, each transaction, or each product, the limit on risk burden, the limit on transactions

The operation shall be determined and operated.

(3) Each financial investment business entity shall assess various risks, such as market risks, operational risks, and liquidity risks that may arise from various transactions by type.

shall be maintained and managed.

20) A sudden change (e.g., a 9.1 situation at night) that may affect share prices between the beginning of the following day after the end of the Chapter and the beginning of the following day;

Stock holders shall bear shares for a period for which no stock market is opened, such as North Korea's nuclear situation, the lease's national debt, etc.)

means the risk.

21) The term "pooling method" means the dedele value while controlling risks arising from the trade of like underlying assets or like derivatives in a single pool.

In addition, it is not managed by each derivatives, but a single pool management method. When a pooling method is used, the same pooling method is used.

Since the trading of shares is conducted once as offset against each other, not only the trading cost has been reduced significantly but also the financial institution has a financial institution.

It has advantages that the scale of risk that could not be lost due to deel value has decreased.

22) see set forth in Category B(10).

심급 사건

서울중앙지방법원 2011.11.24.선고 2010가합51302

-서울고등법원 2012.11.1.선고 2011나104712

-대법원 2016.3.24.선고 2012다108320

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