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The judgment below
The part against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.
Reasons
The grounds of appeal are examined.
1. As to the violation of the suitability principle
(a) In concluding a contract with an enterprise with a purpose of foreign exchange hedging, a bank shall not, in advance, ascertain the business conditions of the relevant enterprise, such as estimated foreign currency input amount, assets and sales size of the relevant enterprise, whether it is necessary to foreign exchange hedging, whether it is required, transaction purpose, experience in transactions, knowledge or understanding of the relevant contract, whether it has entered into any other exchange hedging contract, and in light of the results, recommend the relevant enterprise to enter into a contract that is inappropriate for the relevant enterprise
If a bank actively solicits a currency option contract that causes an excessive risk in light of the management conditions of the company in breach of such obligations and makes it concluded, such solicitation constitutes an illegal act that violates the so-called suitability principle and is in violation of the duty to protect customers.
(1) In order to determine whether a contract is appropriate for the pertinent company, a bank needs to first ascertain the transaction purpose, property status, etc. in order to determine whether the contract is appropriate for the pertinent company prior to soliciting a contract to a company (see, e.g., Supreme Court Decision 2011Da53683, 53690).
However, the bank has neglected its duty to investigate.
Even if the contract does not cause an excessive risk in light of the corporate management conditions, the bank shall not be deemed to violate the suitability principle.
B. The court below held that the contract amount of the call option which the defendant can exercise to the maximum extent is USD 600,000 per month ($ 7200,00 per year) and the plaintiff's export performance exceeded the scope of the above contract amount, and thus, the contract amount of this case does not fall under OraH, while the defendant included the plaintiff's expected foreign currency input amount, assets, and sales amount at the time of conclusion of the contract of this case.