키코(KIKO) 사건에서의 사정변경의 원칙

Abstract

Supreme Court does not tend to apply the principle of changing circumstances in contract easily. It means, the principle of changing circumstances can be recognized with exception of Contract Compliance Principle, but not in principle. In KIKO Case, the point was that whether there were changes in the objective situation or not. Inherent variability of exchange rate that could be predicted at the time of signing currency option contracts can be strayed from the range of knock-in and knock-out in predictable range. This flexibility in the range only could be the objective situation from basic of contract because of the characteristic of currency option contracts, you can not tell there is a change. However, if inherent variability show the new one that stray foreknowledge possibility range at contract by external situation, this kind of new flexibility can be consider as a change of the objective situation. Thus, decision of the court that dismissed that inherent variability of exchange rate is already premised in currency option contracts has a possibility of reconsideration. A precedent says potential fluctuations of inherent variability itself also already premised like exchange rate fluctuation through process of currency option contracts because inherent variability of exchange rate in Monami Case is mutually interlocked with changes in market prices of options. This decision can be agreed, but inherent variability of exchange rate that is related with price fluctuations of option market would rather be considered that it itself is included in objective circumstances. Related to foresight possibility of international financial crisis in Kiko Case, the court thinks that skyrocketing exchange rate due to external shock expanded inherent variability of exchange rate, but they don’t think the speedy rise of exchange rate has foreknowledge possibility. However, because of the characteristic of currency option contracts, sharp rise that does not have foreknowledge possibility is taken in inherent variability, and inherent variability is the content itself of currency option contracts. According to precedent, if sudden rise of exchange rate was arose because of international financial crisis without foreknowledge possibility, they amplified inherent variability by situation without foresight possibility. In this, an object of range without possibility of foresight is the range that exceeds predicted foreknowledge possibility.