해외 파생상품시장거래에서 마진콜 없는 장중 반대매매의 효력 - 대법원 2025. 3. 13. 선고 2024다215375, 215382 판결 -

초록

Recently, a Supreme Court case has emerged on whether a domestic investment brokerage firmʼs counter-trading to liquidate customersʼ accounts without issuing a margin call in an overseas derivatives market in accordance with the terms and conditions of the contract constitutes an exceptionally permissible discretionary trading under the Capital Markets Act. In this case, the Supreme Court took a different stance from the trial court on all issues, and this paper examines the individual issues in detail based on the facts and conclusions of the case. In overseas derivatives markets, the practice of liquidating a customerʼs account by an investment broker without a margin call (i) serves to protect the broker itself and the market as well as to manage risk on behalf of the investor, while (ii) arbitrarily eliminates the investorʼs right to choose. Considering the function and necessity of liquidating customerʼs accounts as described in (i) above, the Supreme Court seems to have concluded that the counter-trading to liquidate customerʼs accounts under § 14(2) of the terms and conditions in this case constitutes an exceptionally permissible discretionary trading under the Capital Markets Act, and therefore the above provision of the terms and conditions is valid. While this conclusion is persuasive from the perspective of respecting private autonomy, it can be criticized as an unreasonable judgment that is not easy to draw from the literal interpretation of the relevant provisions under the Capital Markets Act. As long as domestic investment brokers continue to adopt the current standard terms and conditions, derivatives investors are requested to understand the content and application requirements of the terms and conditions regarding counter-trading in the account establishment agreement. In particular, investors should ensure that the value of their holdings does not fall below a certain level, and if the market price fluctuates rapidly and the margin level falls below a certain level, they should take measures such as making additional deposits without delay to cover the shortfall even if there is no margin call.

키워드