The case denying the liability for damages of a securities company which fails to comply with an order issued by a customer who entered into a contract for the purchase of put options and put options, even though the customer who entered into the contract for the purchase price index options, to purchase put options;

In a case where a customer who entered into a contract with a securities company for the purchase of put options and put options does not have basic deposits specified in the manual on futures and options, or does not trade for reasons such as error in the operation of an electronic data processing system, the case holding that the securities company is not liable to compensate for damage on the ground that, in light of the fact that, although each customer entered into a contract for the purchase of put options and put options, there is no possibility that the stock exchange option transaction has a right to sell and sell the stock index according to the price formed in the market, and that there is a possibility that there is a lot of loss, and that there is a possibility that a certain degree of speculation and risk are inevitably incidental to the investment principal, it is difficult to presume that the customer would have obtained profits by reselling it at the time of arrival of the highest price, even if each of the relevant options was normally traded on each option item.

Articles 390 and 750 of the Civil Act

Kim-jin (Attorney Lee Jae-jin et al., Counsel for the defendant-appellant)

Modern Securities Co., Ltd. (Attorney Kang Jung-soo, Counsel for defendant-appellee)

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

The defendant shall pay to the plaintiff the amount of KRW 300,00,000 with the annual interest rate of 5% from October 23, 1997 to the delivery date of a copy of the complaint of this case, and the amount at each rate of 25% per annum from the next day to the full payment date.

1. Basic facts

The following facts are either in dispute between the parties or in relation to Gap evidence 2-1, 2, 4-4 (the same as Eul evidence 9), 9, Eul evidence 1, Eul evidence 2-1, 2-2, Eul evidence 3-1, 2, 10, and Eul evidence 10, and the witness's testimony on the changed witness's testimony, and there is no counter-proof.

A. On August 21, 1997, the Plaintiff entered into an account contract with the Defendant Company to entrust the stock price index, futures trading and stock price index option trading (hereinafter “transaction”) on the securities market established by the Korea Stock Exchange (hereinafter “Stock Exchange”) (hereinafter “Stock Exchange”). In this regard, at the time, the Defendant Company approved the pre-determined terms and conditions of transaction, and agreed to carry out the transaction under its own judgment and responsibility after sufficiently grasping the content of the above futures and option transaction (Article 2(2) of the Terms and Conditions).

In the above statement, when a truster entrusts a new sale or new purchase without holding an unsettlement agreement (which means a remaining balance) after opening an account, he/she shall pay in advance to a securities company the amount of cash of at least 10,000,000 won or securities equivalent to the amount in advance as basic deposits for futures and options (hereinafter referred to as "basic deposits").

B. On October 23, 1997, when the Plaintiff traded through the Defendant Company, the Plaintiff: (a) around 10:20 on October 23, 1997; (b) put put options 57.5 items to put options to the Non-Party, an employee of the Defendant Company Trade Center; (c) 350 points; (d) put options to put options to the Non-Party, an employee of the Defendant Company Trade Center; (e) 0.90 points; (c) put options to put options to put options to 31,50,000 x 350 x 350 x 350 x 100 x 100 x 100 x 1,000 (hereinafter referred to as “each put options of this case”); (d) requested each of the above types of put options to buy put options to 1.30 points; and (e) requested each of the above types of put options to 4060,000 won.

C. On January 5, 1998, the Plaintiff requested to purchase 170 points a call option (10,200,000 won = 0.60,000 x 170 x 100,000 won x 100,000 won) from the above 0.60 points from the call options (hereinafter “the call options type of this case”) to the above 0000% on January 5, 1998, but the Plaintiff failed to purchase the instant call options type of the Defendant Company’s futures and options consignment account management computer system (hereinafter “electronic system”).

(d) The option transaction of the share price index means a transaction under which the buyer agrees to transfer to the purchaser the right to make a transaction of giving and receiving the money calculated by the difference between the share price index established in advance between the parties by unilateral declaration of intent of the purchaser and the price index actually expressed at the time when the seller expresses its intent in accordance with the criteria and method set by the Korea Stock Exchange, and the purchaser agrees to pay the price.

The trading target index is Korea Stock Exchange 200 (MaOSPI 200). The trading target issue is an option listed on the Korea Stock Exchange according to the type of trading, settlement month, and the exercise price. The trading unit is indicated as a contract, but the minimum trading unit is one contract, and the amount of one contract is multiplied by the price (point) by 100,000 won.

E. In case where the settlement price of the exercise of rights is lower than the exercise price by a purchaser’s unilateral declaration as a right to sell put option, put option is the stock price index option option which can establish the transaction that the purchaser receives from the seller, and the call option is the stock price index option which can establish the transaction that the purchaser receives from the seller, and where the exercise price by the purchaser’s unilateral declaration is higher than the exercise price by the purchaser’s unilateral declaration of intent, the amount calculated on the basis of the difference can be formed.

When the stock market is lower than that, the purchaser of put options can gain profits when the stock market is higher than that of the stock market, and in any case, the purchaser and the seller's profits and losses are shown in opposition.

2. Determination as to a claim against the Commission

A. First, we examine the Plaintiff’s purchase order on October 23, 1997 with regard to each of the instant put options, but did not make transactions.

(1) The plaintiff's assertion

(A) The Defendant Company, as a member of the Korea Stock Exchange, has a duty to perform the transaction business in compliance with the relevant Acts and subordinate statutes on futures trading and options trading by a securities company, regulations on stock price index futures trading business by securities companies, futures trading business rules, futures and options brokerage contract rules (hereinafter “working rules”). Meanwhile, Article 19(1) of the above Rule provides that a settlement agreement by a truster shall include an unsettlement agreement prior to the date of receipt of the settlement amount (12 days following the date of payment, renewal funds, final settlement funds, option payments, or exercise of rights). Thus, the Defendant Company shall determine whether to pay the Defendant Company’s basic deposit prior to the date of receipt of the settlement amount, including an unsettlement agreement, prior to the arrival of the time of receipt of the settlement amount as stipulated in the above Rule.

(B) The Defendant Company: (a) sold the entire amount of call options held by the Plaintiff around 10:00 on October 23, 1997; and (b) was expected to deposit KRW 70,000,000 with the Plaintiff’s account as the sale price on the day; (b) accordingly, according to the provisions of the above rule, the Plaintiff refused the consignment of transaction solely on the ground that the Plaintiff did not have to pay the basic deposit, even though there was a lack of a settlement agreement by the Plaintiff, at around 10:20 on the same day, at the time of ordering the purchase of each of the instant put options.

(다) 위와 같은 피고 회사의 잘못된 전산시스템 운용으로 말미암아 이 사건 각 풋 옵션 종목에 대한 매수가 이루어지지 아니함으로써 결국 원고로 하여금 위 매수 주문에 의해 정상적으로 매매거래가 이루어졌더라면 이 사건 각 풋 옵션 종목의 종가가 최고치에 도달한 1997. 10. 31. 이를 전매하여 얻을 수 있었던 차익 합계 금 482,850,000원{① 풋 옵션 행사가격 57.5 종목 종가 9.50(1997. 10. 31. 기준)；(9.50－0.90)×350×금 100,000원＝금 299,250,000원(금 301,000,000원이나 원고의 계산에 따른다)＋② 풋 옵션 행사가격 60.0 종목 종가 11.50(1997. 10. 31. 기준)；(11.50－1.3)×180×금 100,000원＝금 183,600,000원}을 모두 상실하게 하였으므로 피고 회사는 그 손해배상으로서 원고에게 그 중 일부인 청구취지 기재 금원을 지급할 의무가 있다.

(2) Determination:

(A) Article 19(1) of the above Rule provides that an unregistered settlement agreement of the truster is included in the settlement agreement before the time limit for receipt of the settlement amount arrives, and the fact that the plaintiff sold all of the call options he held on October 23, 1997 and sold the entire amount of the call options on October 23, 1997 and the amount of KRW 71,385,000 (Evidence A No. 4-4) as the sale price on the day was scheduled to be deposited into the plaintiff's account is as asserted by the plaintiff.

(B) However, the following facts can be acknowledged in light of the statements in Gap evidence 4-1, 2, Eul evidence 6 (the same as Eul evidence 4-5), Eul evidence 7 (the same as Eul evidence 4-5), Eul evidence 11-1, 2, Eul evidence 4-12, Eul evidence 5-1, 5-2, and 3, and the whole purport of the pleading at the witness's testimony, and there is no counter-proof.

1) On July 7, 1997, the stock exchange trading was first established on the securities market in our country. A member of the stock exchange (securities companies) developed a futures and options consignment account management computer system to be used in self-transaction prior to the establishment of the market in accordance with the basic guidelines of the Stock Exchange (such as the theory of dismissal of the stock price index option system for the development of the member trust system). Each member of the Stock Exchange decided whether the computer system developed independently by each member was established in conformity with the basic guidelines of the Stock Exchange, and even until now, the joint online system and re-building system are not uniformly maintained as in the case of the stock market.

2) In the process of determining the appropriateness of a member’s computer system as above, each member’s computer system was not uniformly unified. In particular, since a member has been in a separate judgment and operation with respect to the provisions related to the basic deposit, 23 companies (17 companies around November 1, 1997) among the 35 members companies at the time of the establishment of the market stipulate that when the truster does not hold a non-payment agreement, the truster would pay the basic deposit at the time of the purchase or sale order, but the remaining companies did not require the truster to deposit the basic deposit.

3) In developing his own computer system, when a truster newly entrusts sales or new purchase without holding an account after opening an account in relation to the basic deposit in a situation where the truster does not hold an unsettlement agreement, the Defendant Company determined in advance that the consignment of sale and purchase may be refused unless he pays cash of 10,000,000 won or securities equivalent to the said amount as the basic deposit (not including an unsettlement agreement prior to the arrival of the time limit for receipt of the settlement amount). The Defendant Company’s computer system, including such content, was determined to have been properly established by the Stock Exchange around March 6, 1997.

(C) In light of the above facts, even if the Defendant Company did not include an unsettlement agreement prior to the date of receipt of the settlement amount in determining whether to deposit the truster’s basic deposit, as alleged by the Plaintiff, it cannot be deemed that the Defendant Company failed to comply with the relevant statutes and rules regarding futures and options trading as a member of the Korea Stock Exchange, or committed any error in operating the Defendant Company’s electronic computer system. As long as the Defendant Company issued the option transaction statement stating the deposit terms and conditions set by itself to the Plaintiff as the truster and notified the details thereof, it is deemed that the Defendant Company’s refusal to accept the consignment of each of the instant put option items on account of the lack of the Plaintiff’s unsettlement agreement

(D) As alleged by the Plaintiff, even if the Defendant Company erred in failing to include a non-payment agreement prior to the arrival of the time limit for receiving the settlement amount in determining whether to deposit the basic deposit amount of the truster, in view of the fact that the stock price index option transaction is a transaction based on the price formed in the market and is likely to gain more profits than the investment principal, and that it is a transaction that inevitably entails a certain degree of speculativeness and risk, as it is likely to cause a lot of losses, and that it is a transaction that inevitably entails risks, it is difficult to presume that each of the instant contracts would have been made at the time when each of the instant contracts would have arrived at the highest price after each of the instant contracts was made by the Plaintiff, and there is no other evidence to acknowledge such causation. Therefore, the Plaintiff’s above assertion cannot be presumed to have been made as false or reasonable.

B. Next, we examine the Plaintiff’s purchase order as to the instant call options, which was issued on January 5, 1998, but did not make any transaction.

(1) The plaintiff's assertion

The plaintiff requested on January 5, 1998 to purchase the instant call option items to the above changed company, but the defendant company suspended the operation of the computer system without any prior notice, and the defendant company failed to purchase the instant call option items due to the operation of the erroneous computer system as above, and eventually, it was liable to pay 6,800,000 won [the price points that the plaintiff could have actually purchased the instant call option items at the time when it had sold them on the same day if it had sold them normally according to the above purchase order] which was 0.95 (0.5-5) x 170 x 170 x 6,800 x 170 x 6,800 x 100 x 100 x 170 x 100 x 100 x 101 x n part of the claim amount to the plaintiff as compensation for damages.]

(2) Determination:

In light of the fact that the Plaintiff, at the time of issuing an order for purchase of the instant call option, a temporary computer error occurred in the Defendant Company’s electronic computer system, as seen above, however, there is no evidence to support that the occurrence of such temporary computer error was caused by the Defendant Company’s occupational error, and even if a temporary computer error occurred due to the Defendant Company’s negligence in operating the electronic computer system as alleged by the Plaintiff, as seen earlier, even if a temporary computer error occurred due to the Defendant Company’s negligence in operating the electronic computer system, as seen earlier, it is difficult to presume that the Plaintiff would have been able to gain profits from the resale of the instant call option if it was normally traded with regard to the instant call option issue, and there is no other evidence to support such causation. Therefore, the Plaintiff’s above assertion is not reasonable.

3. Conclusion

Therefore, the Plaintiff’s claim in this case, based on the premise that the Defendant Company did not comply with the relevant statutes and rules regarding futures and options trading as a member of the Korea Stock Exchange, or was erroneous in operating the said futures and options consignment account management computer system, is dismissed without any further need to be determined, and it is so decided as per Disposition.

Judges Park Yong-ran (Presiding Judge)