[1] The case holding that it is difficult to view that there is a proximate causal relation between the error of data on the amount of put options, among the data on trading status by option investors provided by the securities company through the Home Exchange System, and the customer's investment losses, which have been engaged in futures and options trading using the above system

[2] The case holding that the securities company is liable to pay consolation money to the securities company that provided false information about the repurchase amount of put options through the Home Trading System

[1] The case holding that even if there are errors in data on put options repurchase amount among the data on trading status of each option investor provided through the Home Trading System, it cannot be deemed that there is a proximate causal relation between such errors and investment losses caused by customer futures and call options transaction, and further, it is difficult to find a proximate causal relation between the error and customer's losses caused by put options transaction as well as investment losses caused by customer's put options transaction

[2] The case holding that if a securities company has a fiduciary duty to provide accurate information to customers, so if it provides inaccurate information about the repurchase amount of put options through put options through the home trading system for a long time, it should pay consolation money to customers who have conducted futures and options trading with trust in the above information.

[1] Article 750 of the Civil Act / [2] Article 751 of the Civil Act

Kim Dok Kim

Korea Investment Trust Securities Corporation

Cheongju District Court Decision 2002Gadan22922 delivered on September 19, 2003

September 8, 2004

1. Of the judgment of the court of first instance, the part against the plaintiff falling under the following order for payment shall be revoked. The defendant shall pay to the plaintiff 4 million won with 5% interest per annum from November 21, 2001 to September 22, 2004, and 20% interest per annum from the next day to the date of full payment.

2. The plaintiff's remaining appeal is dismissed.

3. The costs of the lawsuit shall be ten minutes per each of the first and second instances, and such nine minutes shall be borne by the plaintiff and the remainder by the defendant.

4. The part concerning the payment of money under paragraph (1) may be provisionally executed.

The defendant shall pay to the plaintiff 89,225,420 won with 25% interest per annum from November 21, 2001 to the day of complete payment.

Of the judgment of the first instance, the part against the plaintiff is revoked, and the defendant shall pay to the plaintiff 8,225,420 won with 20% interest per annum from November 21, 2001 to the date of full payment.

1. Determination on this safety defense

As to the plaintiff's claim for compensation by providing error data to the defendant, who is a securities company, that caused damage to the market price index futures option transaction, the defendant set up a gift and option account as an agent of the non-party Kim Jong-soo, and did not have any financial transaction between the plaintiff and the defendant, so the plaintiff cannot be a party to the lawsuit. Thus, the defendant's defense of this safety is without merit, since the plaintiff's assertion that he is the claimant to the claim for performance is the plaintiff.

2. Judgment on the merits

(a) Basic facts;

The following facts may be acknowledged if there is no dispute between the parties, or if there is a statement of evidence Nos. 1, 2, 3, 5, 10, 1, 2, 3, 4-1, 2, 5, 7, and some testimony of witness Kim Jong-hee in the first instance trial are considered to be a whole purport of the pleadings.

(1) The Defendant is a securities company that engages in the business of selling and buying securities, selling and buying securities, acting as a broker or an agent for the sale and purchase of securities, and the Plaintiff opened a futures and options account with the Defendant Company on February 13, 2001, in the name of Kim Jae-in, the Plaintiff, as an agent, and made a transaction of stock and futures stock options using the Defendant’s home trading system.

(2) The Defendant Company provided data provided by the Securities Computer Company and provided the Home Trading System. From February 1, 2001 to August 17, 2001, in the process of receiving data on the trading status of options by options from the Securities Computer Company to the Defendant Company’s external connection system and transmitting the data to the Home Trading System server, the Defendant Company entered into an error of indicating the amount of put options repurchase on the screen of each option investor’s sales status as '0' due to the deletion of part of the printed amount data, and thereby, the error of indicating that the net sales amount of put options would be higher than the instant data error (hereinafter “data error”).

(3) The KOSPI200 index was lowered from February 2, 2001 to April 2001, and thereafter, from February 2001 to May 2001, to May 2001, and thereafter, from July 2001 to July 2001, the KOSP20 index re-satised again, and thereafter thereafter, from August 2001 to August 2001.

(4) In trading futures and options from February 20, 201 to November 22, 2001, the Plaintiff: (a) 23,39,00 won in put options; (b) 22,425,00 won in put options; and (c) 6,77,022 won in put options; (b) 54,856,022 won (2,25,000 + 23,39,000 won + 22,425,00 won + 6,777,000 won in put options; and (c) 22,425,000 won in put options; (d) 6,77,000 won in put options; and (e) 23,47,022 won in put options; and (e) 205,405,200 won in total incurred from trading by the Defendant Company’s program from June 1, 2001 to 205.

B. The parties' assertion

(1) The Plaintiff asserts that the Defendant Company’s intentional or negligent display of error data, such as (2) intentionally or by negligence, was aware that the foreigner and the institution committed an attempt to increase the share price index by putting up for the net sale of put options, and accordingly, putting emphasis on the purchase of call options and the purchase of futures, etc., but, thereby, was likely to cause damage to the wind that the share price index drops. However, the Plaintiff sought payment of investment loss amounting to KRW 59,225,420 from the end of May 17, 2001 of the Plaintiff’s futures and options trading period until August 17, 2001, which discovered error data, and KRW 30,000,00.

(2) The Defendant asserts that the data error in this case was objective and apparent and that there was an error that the Plaintiff could have easily confirmed if it had paid little attention, and that the transaction status of each investment entity was merely a simple reference material for investment, and that the data error in this case had an impact on the Plaintiff’s investment judgment, and that it was not known whether the Plaintiff was engaged in any form of sale due to the data error, and that there was no error in the data of this case, and that there was no causation between the data error in this case and the damage caused by the Plaintiff’s futures/observer transaction.

(c) Markets:

(1) Determination as to losses from investment

In the process of transmitting data on the current status of trading by options investors received from the Defendant Company’s external connection system to the Home Exchange System server, the fact that the instant data error occurred due to the negligence of erroneously setting the file server size in the processing protocol, and the fact that the Plaintiff incurred 54,856,02 won investment loss while engaging in futures and options trading (no evidence exists to acknowledge that the Defendant Company intentionally transmitted the instant data error to the Plaintiff).

Therefore, we examine whether there is a proximate causal relationship between the above negligence of the defendant company and the above damage.

(A) Part of futures and call options trading

① According to the evidence adopted earlier, even if the Plaintiff’s sales of put options, among various data on put options provided by the Defendant, misjudgments the amount of put options on the screen, but there were no errors in the amount of put options, sales volume, sales amount, and data. However, in the transaction of futures or call options, the Plaintiff appears to have made an accurate transaction or call option transaction with an investor such as investment price or foreign investor, with accurate information on how to buy and sell futures or call options or how to sell them. ② In determining the market situation of the long-term price index or KOSI20 index, it was difficult to determine the amount of put options or call options, as a whole, based on the following facts: (i) there was an error in determining that there was an error in the total amount of put options, how to sell and sell put options, how to put options, how to sell them, and how to purchase and sell them, and (ii) there was an error in the amount of put options and how to sell them.

뿐만 아니라, ① 갑13호증의 기재에 의하면, 원고는 장기적으로 주가지수나 KOSPI200 지수의 시장상황을 예측하여 투자하는 장기투자가가 아니라 매일 또는 하루에도 여러 번 선물이나 콜옵션의 매도·매수행위를 반복하여 단기투자차익을 얻는 일중거래 위주의 단기투자가임이 인정되고{그 예로 '별지 1 종목코드 20118065 거래내역'과 같이 종목코드 20118065(종목명은 'KOSPI200 콜옵션 0108 65.0'이다. 종목코드의 맨 앞자리 숫자 2는 콜옵션을, 그 다음 숫자 01은 KOSPI200지수를, 그 다음의 숫자 1은 연도를, 그 다음의 숫자 8은 8월 매물을, 그 다음의 숫자 065는 행사가격을 각 나타낸다.)에 관한 콜옵션의 거래는 2001. 7. 25.부터 2001. 7. 31.까지 이루어졌는데, 2001. 7. 25. 하루만에도 매도 22회, 환매수 15회, 합계 37회의 거래가 이루어졌고, 1거래별 계약수도 적게는 1계약에서 많게는 10계약(위 별지상의 수량은 계약 수를 나타낸다.)까지 이루어졌으며, 적게는 129,000원에서 많게는 159,000원까지의 프리미엄(위 별지상의 단가는 프리미엄을 나타내며, 단위는 10만 원이다.)을 받고 매도하였다가, 적게는 126,000원에서 많게는 132,000원까지의 프리미엄을 주고 매수하였다.}, ② 원고가 자신의 콜옵션 거래내역을 분석한 갑17호증의 3의 기재에 의하더라도 원고의 일별 콜옵션 보유량은 일정한 기간 증가하였다가 0 내지 그 이하까지 감소하고, 다시 증가하였다가 감소하는 현상이 반복되어 왔으며, 또한 ③ 이 사건 데이터 오류가 있음을 알게 되어 원고가 주가지수 하락을 예상한 포지션(선물·콜옵션의 경우에는 매도 성향이다)으로 투자성향을 전환하였다고 주장하는 2001. 8. 17. 이루어진 선물·콜옵션 거래를 보면, '별지 2-1 2001. 8. 20.자 거래내역'과 같이(8. 18.과 8. 19.이 토요일과 일요일이어서 갑13호증상의 2001. 8. 20.자 거래로 나타난 부분이 2001. 8. 17. 이루어진 거래에 관한 자료이다.) 선물의 경우에는 매수 11회(총액 464,275,000원) 매도 11회(총액 464,775,000원)이고, 콜옵션의 경우에는 매수(환매수 포함) 79회(계약수 합계 509, 프리미엄 총액 76,751,000원), 매도(전매도 포함) 62회(계약수 합계 464, 프리미엄 총액 67,122,000원)로 나타나, 선물의 경우에는 매도와 매수가 동일하고, 콜옵션의 경우에는 오히려 매수 계약수 및 총액이 매도 계약수 및 총액보다 많게 나타나고{특히 2001. 8. 17. 이루어진 콜옵션 거래 중에서 종목코드 20119072의 거래가 대부분을 차지하는데 '별지 3 종목코드 20119072 거래내역' 와 같이 주가지수 하락을 예상한 포지션인 콜옵션 매도 거래를 53회 체결하면서도(계약수 합계 394회, 프리미엄 총액 63,657,000원이며, 그 단가는 일정하지 않다.), 이와는 반대로 주가지수 상승을 예상한 콜옵션 매수 거래를 73회 체결하였고(계약수 합계 459, 프리미엄 총액 73,731,000원이며, 그 단가는 일정하지 않다.), 또한 그 날 매수한 콜옵션의 프리미엄이 그 다음날 이후에 매도한 콜옵션의 프리미엄보다 대체로 높아 그 날의 매수거래로 인하여도 손실이 발생한 것으로 인정된다.}, 그 다음날인 2001. 8. 18. 이루어진 선물·콜옵션 거래의 경우에 있어서도 '별지 2-2 2001. 8. 21.자 거래내역'과 같이 선물의 경우에는 매수 13회(총액 454,425,000원), 매도 16회(총액 558,925,000원)로 매도가 많지만 콜옵션의 경우에는 매수(환매수 포함) 18회(계약수 합계 210, 프리미엄 총액 15,363,000원), 매도(전매도 포함) 24회(계약수 합계 190, 프리미엄 총액 16,685,000원)로 역시 매수 계약수가 매도 계약수보다 많게 나타난다.

Therefore, in full view of these circumstances, it is difficult to view that the Plaintiff’s gift or call option sales and purchase made by each item of day are superior to the increase or decrease in the long-term price index, and rather, it appears that the profit or loss was determined by the difference and trading volume of the unit price for sale and purchase made daily or occasional. Therefore, it is difficult to recognize that there exists a causal relationship between the error of the data of this case regarding the amount of put options repurchase and the Plaintiff’s investment loss caused by the Plaintiff’s futures and call option transaction.

(B) Part of put options trading

Among various data on put options provided by the Defendant, there was no error in the data on the face value of put options, other than wrong data, and thereby, the overall net sales amount of put options should be zero. However, the difference in the amount of put options, which is indicated as the total net sales amount due to the difference in the amount of put options. However, the total amount of put options trading and put options trading and the total amount of put options trading and the total amount of put options purchased and redeemed are equal to each other and 0. Such fact can be easily known if they are investors with basic common sense regarding put options trading, and the data on quantity that is not the amount of put options trading were provided by put options investors were provided. Accordingly, in comparison with this, it was difficult to find that the amount of put options and put options were insufficient, and even if there was no error in the data on put options, it was found that there was no error in the data on put options trading.

In addition, according to No. 13: (a) the Plaintiff’s sales of put options 10 to 10.00, 200, 200, 30,000 won, 10,000 won, 10,000 won, 70,000 won, and 10,000 won, 20,00 won, 70,000 won, and 10,00 won, 10,00 won, 70,00 won, and 10,00 won, and 7,00 won, 0,00 won, 7,000 won, 0,00 won, and 7,00 won, 7,000 won, and 10,00 won, 7,00 won, 0,000 won, and 10,00 won, were more than 7,00 won, and 7,00 won,00 won, 7,000 won,0.

Therefore, in full view of the above circumstances, the Plaintiff’s losses arising from the Plaintiff’s trading of put option is attributable to the daily trading in order to obtain short-term profits, and profits and losses by each type of trading are recognized to have been determined by changes in the unit price that occurs on a short-term or daily basis rather than the long-term investment trend according to the current status of trading amount by option investors, and by the choice of sales volume or purchase volume taking into account such changes. Considering the situation that even if the transaction of put option was made with strong speculativeness and risk, even if the Plaintiff provided adequate information, it may have a somewhat impact on the Plaintiff’s trading of put option, but there is not sufficient evidence to acknowledge proximate causal relation that the Plaintiff’s losses incurred from put option transaction were caused by the Plaintiff’s data error, and there is no other evidence to acknowledge this, in light of the above overall circumstances, it is difficult to calculate the amount of damages caused by the data error, and it is not recognized that the amount of damages should be calculated in light of the total amount of losses.

(2) Judgment on the claim for consolation money

Despite the fiduciary duty of due care as a good manager to provide accurate information to the Plaintiff who opened the futures and options account according to the contract to open the futures and options account, the Defendant provided inaccurate information by creating error in the amount of put options, which occurred over a long-term period of time, due to the negligence of wrong setting up the scope of put options in connection with the external connection processing process, (in particular, according to the witness Kim Jong-hee’s testimony, the Plaintiff could be recognized as having reduced the sales status by options investors and asked Kim Jong-hee, who is an employee of the Defendant company. Therefore, even around that time, the Defendant company could have immediately determined the external connection system’s marbblity and sarities if it had verified it properly at an early time, if it was insufficient to acknowledge the causal relationship between the data error and the Plaintiff’s investment loss, at least the information provided by the Defendant company was believed to be correct, and thus, it is necessary for the Plaintiff to have been aware of the wrong information, and the amount of the Plaintiff’s mental loss and mental loss during the above 00-year trading period.

3. Conclusion

Therefore, the defendant is obligated to pay damages for delay calculated by the rate of 5% per annum under the Civil Act from November 21, 2001 to September 22, 2004, which is the date of the judgment of the appellate court of this case, and 20% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment, according to the plaintiff's claim against the plaintiff as to the damages for delay from November 21, 2001 to November 22, 2004. Thus, the plaintiff's claim of this case is justified within the above scope of recognition, and the remaining claim is dismissed as it is without merit. Since the judgment of the first instance is unfair with some different conclusions, the part against the plaintiff as to the amount ordered to be paid under paragraph (1) of the judgment of the first instance, which is ordered to pay the above money to the defendant, and the court of first instance shall maintain the judgment in accordance with the principle of prohibition of disadvantageous alteration, since only the plaintiff appealeds appeal.)

Judges Kim Yong-deok (Presiding Judge)