[2] The elements for the establishment of a conspiracy relationship with the co-principal

[3] The method of proof where the defendant recognizes the fact that he was directly involved in the act of execution and denies the criminal intent

[4] Where a fine is imposed on a corporation pursuant to Article 215 of the former Securities and Exchange Act, the method of calculating the fine under Article 207-2 of the former Securities and Exchange Act, which is concurrently imposed on the corporation in the event that the corporation violated the above provisions of the Securities and Exchange Act

[5] The method of calculating "profit derived from a violation, which is the upper limit of punishment of a fine under the proviso of Article 207-2 of the former Securities and Exchange Act, and the standard time and the principle of determining fines

[2] In relation to accomplices who are jointly engaged in a crime by more than two persons, the conspiracy does not require any legal punishment. It is a combination of two or more persons to jointly process a crime and realize the crime. Even if there was no process of conspiracy, if there was a combination of intent to do so in order or impliedly, the conspiracy relationship is established between several persons, and even if there was no direct participation in the conduct, a person is held liable as a co-principal for the other's act.

[3] In a public-private partnership, there is a strict proof to acknowledge the criminal facts that constitute a public-private partnership or conspiracy's criminal facts. However, in a case where the defendant acknowledges facts directly involved in the criminal acts but denies criminal intent along with the fact of the public-private partnership, the facts constituting such subjective elements are bound to be proven by the method of proving indirect facts that are highly related to the criminal's criminal intent due to the nature of the object, and what constitutes indirect facts that are highly related should be determined by the method of reasonably determining the link of facts based on the close observation or analysis power based on normal empirical rule.

[4] Article 207-2 subparagraph 2 of the former Securities and Exchange Act (amended by Act No. 6695 of Apr. 27, 2002) provides that a person who violates the provisions of Article 188-4 of the same Act shall be punished by imprisonment for not more than 10 years or by a fine not exceeding 20 million won: Provided, That if the amount equivalent to three times the profit gained or loss avoided by the violation exceeds 20 million won, the person shall be punished by a fine not exceeding three times the profit or loss amount (the provisions of the former Securities and Exchange Act amended after this case provide that the person who committed the violation shall be punished aggravatingly according to the above profit or avoided loss), and Article 215 of the same Act provides that the representative of the corporation, the agent, the employee or the other worker of the corporation or the individual shall be punished by a fine not exceeding 207-2 through 212 of the former Securities and Exchange Act, and the representative of the corporation shall be punished by a fine not exceeding the maximum profit or loss amount of the corporation as stipulated in the Securities and Exchange Act.

[5] The concept of "profit accrued from a violation" under the proviso of Article 207-2 of the former Securities and Exchange Act (amended by Act No. 6695 of Apr. 27, 2002) refers to the difference between the profit accrued from the violation and the gross income generated from the violation in question, i.e., the gross income generated from the violation in question, subtracting the total expenses incurred from the transaction. Therefore, the profit accrued from the actual transaction refers to the net trading profit remaining after deducting the transaction expenses, such as purchase commission, sales commission, and securities transaction tax (including special tax for rural development) from the total sales amount related to the transaction in question, in addition to the total purchase amount, from the total sales amount in question. The calculation of the profit refers to both the profit accrued from the specific transaction after the commencement of the market price manipulation and the appraised profit of the stocks held at the time of the completion of the market price manipulation at the time of the completion of the market price manipulation, and the amount equivalent to three times the maximum profit or avoided loss from the fine, which constitutes an important element for the defendant's punishment against the defendant.

A. The judgment of the court below

The lower court, based on its evidence, found Defendant Hyundai Electronic Co., Ltd. (hereinafter referred to as “Defendant Hyundai Securities”) guilty on the aggregate purchase and sale price of 300,000,000 won of convertible bonds issued by Hyundai Electronic Co., Ltd. (hereinafter referred to as “Modern Electronic Co., Ltd.”) holding by Defendant Hyundai Securities Co., Ltd. and Hyundai Heavy Co., Ltd. (hereinafter referred to as “Modern Heavy Industries”) and Modern Co., Ltd. (hereinafter referred to as “Modern Co., Ltd.”) using funds to increase the market price of 60,000,000 won and 30,0000,000 won of Modern Securities Co., Ltd. (hereinafter referred to as “Modern Securities”), as stated in its holding, for the purpose of promoting the sale and purchase of stocks in the name of Hyundai Industries Co., Ltd. (hereinafter referred to as “Mod Marine Co., Ltd.”), 26, 1998.

B. The judgment of this Court

(1) Article 18-4 (2) of the Securities and Exchange Act provides that "no person shall commit any act falling under any of the following subparagraphs for the purpose of inducing the sale and purchase transaction on the securities market or Association brokerage market." subparagraph 1 provides that "the act of making or entrusting the sale and purchase transaction of securities misleadingly or with other persons as if the sale and purchase transaction on the securities were booming," and "the purpose of inducing the sale and purchase" here is to mislead investors into being formed by the principle of natural demand and supply on the securities market and to attract them to the sale and purchase transaction (see, e.g., Supreme Court Decisions 9Do2282, Jun. 26, 2001; 200Do1256, Jun. 14, 2002; 200Do26420, Jul. 26, 2002; 200Do1677, Feb. 16, 2006).

이 사건 기록에 나타난 증거와 정황을 종합하면, 피고인 이익치와 위 원심공동피고인에 의한 현대전자 주식의 시세조종이 시작될 당시 현대전자의 총발행 주식수는 56,000,316주이고, 위 주식은 당시 현대그룹의 수장이던 정주영 및 그 일가, 그리고 나머지 현대계열사들이 44,501,390주(79.47%), 기관투자자 등 법인 주주가 2,452,897주(4.38%), 일반 개인소액주주가 5,590,519주(9.98%), 기타 법인주주 2인이 3,445,510주(6.17%)를 각 소유하고 있었던 점, 당시 현대전자 주식분포상황에서 보듯이 유통가능한 현대전자 주식의 최대물량은 기관 및 개인소유 주식 8,043,416주(14.36%)였고, 실제로 가능한 유통물량은 이보다 현저히 줄어든다고 보이는 점, 피고인 이익치와 현대증권이 현대중공업과 현대상선과 함께 이 사건 현대전자 주식매수에 동원하기로 한 자금의 규모는 2,200억 원으로서 현대전자의 시세관여기간 전일(1998. 5. 25.)종가인 주가 14,800원으로 환산하면, 14,864,864주(단주 미만 버림)상당이 되고, 이는 위 최대 유통가능 주식물량의 1.84배에 이르는 물량인 점, 실제 현대중공업과 현대상선은 피고인 이익치와 현대증권을 통하여, 1차 주식매집기간인 1998. 5. 26.부터 같은 해 7. 2.까지는 총 5,199,770주(매수금액 1,169억 원 상당, 기간 중 거래량의 47.4% 매수, 일일분할매수 최대 149회, 일일거래량 중 최대 88.9% 매수)를 매수하여 주가를 최저 14,800원에서 최고 32,000원까지 상승시키고(상승률 116.2%), 1998. 7. 3.부터 11. 12.까지의 제2차 매집기간 중에는 총 3,743,480주(매수금액 965억 원 상당, 기간 중 주식거래량의 16.4% 매수, 일일분할매수 최대 135회, 일일거래량 중 최대 93.2% 매수)를 매수하여 주가를 최저 24,200원에서 최대 31,300원까지 상승시켜, 시세조종 기간 중 현대중공업과 현대상선의 주식매수를 위한 주문 규모는 14,048,500주, 금액으로는 3,361억 원, 그 거래 과정에서의 주가상승에 따라 실제 현대중공업과 현대상선이 사들인 현대전자 주식의 규모는 8,943,250주, 금액으로는 2,134억 원 상당이 되는 점, 피고인 현대증권은 위 시세조종행위가 시작될 당시 영업용순자본 비율의 제고를 통하여 회사의 대외적 신인도를 높일 필요성이 있었던 점, 실제 위 시세조종행위 시작 당시 피고인 현대증권이 자신의 자산으로서 보유중이던 현대전자의 주식은 모두 640,500주였는데, 위 시세조종기간 중의 매매를 통하여 현대전자의 주식수는 시세조종행위 종료시점을 기준으로 772,380주로 모두 131,880주가 늘었고, 동 기간 중의 위 현대전자 주식의 매매거래로 인한 수익은 실현손실과 평가손익을 감안하여 5,859,626,530원에 이르는 점, 또한 위 시세조종행위 시작당시 피고인 현대증권이 자신의 자산으로서 가지고 있던 현대전자의 전환사채 2,500억 원 상당도 시세조종행위의 종료시점을 기준으로 하여 현대전자의 주가를 감안하면 9,037,416,000원의 평가이익이 있었고, 나중에 1998. 12. 28. 위 전환사채를 324,336,942,270원에 모두 현대중공업과 현대상선에 매각하면서 82,765,767,695원의 매각차익(피고인 현대증권 자신의 분석에 의하면, 그 중 현대전자의 주가상승으로 인한 이익부분은 17,939,281,756원이다)을 얻은 점, 기타 피고인 현대증권은 자사의 상품계정 및 역외펀드 등에서 현대전자 주식의 거래를 통하여 상당한 수익을 거둔 점, 피고인 현대증권은 위와 같은 현대전자의 주가상승으로 인한 이익으로 인하여 영업용 순자본의 비율이 상당부분 개선된 점 등 제반 정황이 인정되는바, 위와 같은 간접사실에 피고인 이익치 등에 의한 이 사건 현대전자의 주식매수에 동원한 구체적 매수방법 등을 감안하면, 피고인 이익치에게는 위 증권거래법 소정의 유인목적이 있었다고 봄이 상당하고, 이와 같은 견해에서 피고인 이익치의 시세조종의 범의와 유인목적을 인정하고 피고인 이익치를 유죄로 판단한 원심의 조치는 정당하고, 거기에 상고이유의 주장과 같은 증권거래법 제188조의4 제2항 소정 목적에 관한 법리오해 혹은 현대전자의 주가상승 원인 및 주가조작의 동기에 관한 채증법칙위반으로 인한 법령위반의 위법이 있다고 할 수 없다. 이 부분 피고인 이익치의 상고이유는 이유 없다.

Furthermore, according to the records of this case, even if the main motive for the price manipulation of the modern electronic stocks was in the disposal of the stocks of the defendant's profits value and the modern company's company's company owner through the modern company's modern company's stock price manipulation period and the next year, and the company's company's company's company owner in the modern company's company's company, and the company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's 38

(2) A public invitation of two or more persons to commit a crime is not required under law. It is a combination of two or more persons to jointly process a crime and realize the crime. Even if there was no process of the whole conspiracy, if there was a combination of two or more persons, a public invitation relationship is established, and even if there was no direct participation in the act of the conspiracy, criminal liability as a co-principal is imposed on the other persons (see Supreme Court Decisions 9Do4923, Mar. 14, 200; 200Do1899, Jul. 7, 200; 200Do3483, Nov. 10; 2000; 200Do3484, Jun. 29, 2001; 200Do3497, Apr. 16, 2004).

In full view of the evidence, the court below recognized that the court below ordered the co-defendants of the court below to purchase by raising the value of modern electronic share price, and determined that the above two persons are co-offenders, and there is no error in the misapprehension of law due to the misapprehension of legal principles as to co-principals. The ground of appeal by the defendant's interest in this part is without merit.

2. Judgment on Defendant’s modern securities

A. The judgment of the court below

With respect to the issuance of a fine of KRW 7 billion to the Defendant’s Hyundai Securities, the lower court affirmed the first instance court’s judgment that held that: (a) the fine under the proviso of Article 207-2 of the Securities and Exchange Act was calculated on the basis of the profits accrued in relation to the manipulation; (b) the subject to whom the profits accrued is not at issue; and (c) the amount of profits already accrued in the form of an artificial increase in stock prices even though there was no real profit accruing from the sale of stocks; and (d) the amount of modern electronic stocks held by the modern securities during the manipulation period was 3 million stock prices; and (e) the amount of the comprehensive stock price index and the electric electronic industry index decreased during this period, even though the price index has risen from the highest amount of KRW 14,800 to KRW 32,00,00,000; and (e) the amount of fine is 5 billion or more (3 million stock price increase x 17,200,000 won) and the amount of fine in the first instance judgment on modern Securities.

B. The judgment of this Court

(1) The purpose of Article 188-4(2) of the Securities and Exchange Act and the intent to commit the manipulation of market price with respect to the profits of the Defendant, which the representative director of the Defendant’s modern securities, at the time of market price manipulation of the instant modern electronic stocks, and the fact that the Defendant’s profits in collusion with the above co-defendants in the lower court’s management of the market price of modern electronic stocks. The grounds for appeal against this issue

(2) Article 207-2 subparagraph 2 of the former Securities and Exchange Act (amended by Act No. 6695 of Apr. 27, 2002) provides that a person who violates the provisions of Article 188-4 of the same Act shall be punished by imprisonment for not more than 10 years or by a fine not exceeding 20 million won: Provided, That if the amount equivalent to three times the profit gained or loss avoided by the violation exceeds 20 million won, the person shall be punished by a fine not exceeding three times the profit or loss amount (the provisions of the former Securities and Exchange Act amended after this case provide that the person who committed the violation shall be punished by the above profit or loss amount), and Article 215 of the same Act provides that the representative of the corporation, the agent, the employee or other worker of the corporation or the individual shall be punished by a fine not exceeding 20 million won, and the representative of the corporation shall be punished by a fine not exceeding the above provision of the Securities and Exchange Act (amended by Act No. 2007, Feb. 27, 2007).

The judgment of the court below is justifiable in that there is no benefit in the expression of the court below, but as a result, it should be based on the profit acquired or the loss avoided by modern securities in determining the fine for the fine for the defendant's modern securities. The ground for appeal by the defendant's modern securities against this point is without merit.

(3) The term "profit accrued from a violation" under the proviso of Article 207-2 of the former Securities and Exchange Act (amended by Act No. 6695 of Apr. 27, 2002) is a concept contrary to the "loss amount stipulated at the same time", and the profit accrued from the violation in question refers to the difference between the profit accrued from the violation and the gross income accrued from the transaction and the total expenses incurred from the transaction. Therefore, the profit accrued from the actual transaction refers to the net trading profit remaining after deducting the transaction expenses, such as purchase commission, sales commission, and securities transaction tax (including special tax for rural development), from the total sales amount related to the actual transaction, in addition to the total sales amount, from the total sales amount related to the transaction, and the profit accrued from the transaction at the time when the transaction was completed and the profit accrued from the transaction at the time when the transaction was completed (see Supreme Court Decisions 2002Do1256, Jul. 26, 2002; 2002Do1855, etc.).

(4) In addition, the amount which is three times the maximum profit of a fine or the amount of loss avoided is an important factor that serves as the basis for determining the sentence against the defendant. Thus, the court shall calculate the amount equivalent to three times the profit earned or the loss avoided by the act of violating the provisions of Article 188-4 of the Securities and Exchange Act by using the data recorded in the records, and then determine the sentence against the defendant within the scope of the sentence. The court of first instance determined a fine without clearly stating the amount equivalent to three times the profit, which is the maximum amount of the punishment, in determining the fine for the defendant's modern securities. The court of first instance also maintained the judgment of the court of first instance on the ground that the modern electronic share price has increased from the maximum amount of 14,800 won to the maximum amount of 32,00 won during the market price adjustment period, solely on the grounds that the present electronic share price has increased from the maximum amount of 14,800 won to the maximum amount of 32,000 won.

In this case, the "profit from the violation of the Securities and Exchange Act," which is the basis of the fine amount to be imposed concurrently on the defendant's modern securities, should be determined on the basis of the profits earned from the above market price manipulation. The profits earned from the whole act, including the profits earned from the sale and purchase of modern electronic stocks, which are one's own assets, include the appraised profits at the time of termination of the market price manipulation, and the appraised profits earned from the increase in value of modern electronic convertible bonds which are one's own assets. The above judgment of the court below, as seen in the above part of the judgment on the profits of the defendant's modern securities, did not affect the above 30 billion won of the profits earned from the violation of the Act, since the profits earned from the sale and purchase of modern electronic stocks, which are less than 5,859,626,530 won of the total profits earned from the above 30 billion won of the profits earned from the violation of the Act, the court below's judgment that did not clearly affect the above 300 billion won of the profits earned from the above 400 billion won of the profits.

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Han-gu (Presiding Justice)