자본시장과금융투자업에관한법률위반
The judgment of the court below (including the portion not guilty) shall be reversed.
A defendant shall be punished by imprisonment for three years.
except that this judgment.
1. Summary of grounds for appeal;
A. The lower court determined that there was a misunderstanding of facts, a violation of the principle of trial by evidence, and a violation of the rules of evidence, and a misunderstanding of facts.
The lower court’s determination that the Defendant and M recruited to operate the market price of the shares of K Co., Ltd. (hereinafter “K”) was derived from a drilling on the grounds that there was no evidence that is admissible, or was inferred based on distorted facts.
The defendant did not attract M and the market price, and there was no purpose or motive for the operation of the market price.
B. There is no fact that the Defendant, using the securities account in the name of AK and Q, did not operate the market price of K shares, and there is no fact that the Defendant, together with R, S, T, U, V, etc., was willing to operate the market price of K shares, and there is no fact that the Defendant, along with M, requested Z and AA to operate the market price of the said shares.
B. The lower court did not err by misapprehending the legal doctrine on “profit accrued from a violation” under the Financial Investment Services and Capital Markets Act (hereinafter “misunderstanding of legal doctrine”).
The difference between KRW 1,310 and KRW 797, which is the closing price of October 25, 201, which is the day before the market price determined by the court below, shall be excluded in calculating the amount of unfair profits.
In addition, since shares not distributed by the defendant cannot be the basis for calculating the amount of unfair profit, the amount of unfair profit acquired by the defendant should be calculated on the basis of the shares 2750,000 shares actually distributed by the defendant.
(c)
The punishment sentenced by the court below to the defendant (the imprisonment of five years, fine of five hundred million won, additional collection) is too unreasonable.
2. Judgment on the misapprehension of the legal principle or mistake of facts
A. The Defendant is the vice-chairperson of L, a special purpose corporation established to take over K in KOSDAQ-listed corporations (hereinafter “L”).
M is an uncapital M&A expert, and N is a L's representative director from December 2, 201 to September 7, 201, and K's director from December 7, 201 to September 7, 2012.