[2] The meaning of "the purpose of inducing trade" under Article 188-4 (2) of the Securities and Exchange Act with respect to the prohibition of market price manipulation, etc., and the standard for determining whether the trading of securities constitutes "the trading that misleads people to believe that the trading of securities constitutes a active trading or changes the market price" under subparagraph 1 of the same paragraph

[3] The elements for the establishment of a co-principal

[4] 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

[5] The case holding that the conspiracy co-principal for violating the Securities and Exchange Act is established

[6] The number of crimes committed in a case where a person repeatedly committed an act of conspiracy and trading, an act of false purchase and order, and an act of unfair trading such as high-priced purchase and order for the purpose of putting stocks in bulk to operate the market price (=general crime)

[7] The scope of reversal when the prosecutor's appeal was justified, while both parties filed an appeal against the judgment of the appellate court which partially convicted and acquitted the defendant for concurrent crimes under the former part of Article 37 of the Criminal Code

[2] Article 188-4 (2) of the Securities and Exchange Act provides that "no person shall do any act falling under any of the following subparagraphs for the purpose of inducing the sale and purchase transaction at the securities market or the Association brokerage market," and subparagraph 1 of the same Article provides that "the act of making or being entrusted with the sale and purchase transaction of securities misleadingly or in collusion with other persons as if the sale and purchase transaction at the securities is in active condition, or making the sale and purchase transaction at the same time fluctuates," and "the purpose of inducing the sale and purchase transaction" is to mislead investors into being formed by the natural supply and demand principle in the securities market and to attract them to trade in securities by misunderstanding that the market price at the same time changes due to artificial manipulation, regardless of whether the sale and purchase transaction at the securities constitutes "the sale and purchase transaction which misleads or changes in the market price" shall be determined by comprehensively taking into account the nature and total number of securities issued, motive and type of the securities, the price of the securities at the time of the transaction, etc.

[3] 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.

[4] 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 with the fact, 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.

[5] The case holding that if a public invitation is acknowledged for the share price increase portion through a share collection, it is reasonable to view that all of the specific acts performed for this purpose, which are expected to be incidental to the transactional price fluctuation in addition to the transactional price fluctuation, the act of misunderstanding the transactional situation for the purpose of misleading or misleading the transactional situation, and the act of misunderstanding the transactional situation for the purpose of inducing the transaction, and that there was an implied communication among

[6] Where several acts falling under the same name of a crime are continuously conducted for a certain period under the single and continuous criminal intent and the legal benefits from such acts are the same, each act shall be punished by a single and continuous comprehensive crime. Under the single and continuous purpose and criminal intent of putting stocks which are listed on the listed securities in bulk to operate the market price, as if the transaction were to be erroneous and misleading with respect to the sale and purchase of the listed securities, or as if other persons become aware of the fact that the transaction was conducted with respect to the trading of the listed securities, it shall be deemed that there was an increase in the market price for the purpose of raising the price of the stocks by inducing the trading through means of an expensive purchase order compared to the price at the market price at the same time, and that the act constitutes an unfair trading act under Article 188-4 of the Securities and Exchange Act and Article 188-2 of the same Act and Article 188 of the same Act, each act constitutes a single and continuous violation of the legal interests and interests of the individual securities market or Association under Article 28 of the same Act.

[7] A part of the appellate court's judgment of conviction and a part of the appellate court's judgment of acquittal, and both the defendant and the prosecutor filed an appeal against the judgment of acquittal. However, the defendant's appeal of the guilty part is without merit and the prosecutor's appeal of the guilty part is with merit. If the crime of conviction and the crime of not guilty are concurrent crimes under the former part of Article 37 of the Criminal Act, if the appellate court's judgment of conviction and the crime of not guilty are

1. Judgment on the Defendant’s grounds of appeal

A. As to the assertion of misconception of facts and misapprehension of legal principles due to the violation of the rules of evidence on the violation of the Act on the Aggravated Punishment, etc.

(1) As to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of Trust) and the Merchant Banks Act, the lower court, based on the following facts, found that the Defendant was an executive of the securities company 1 at the same time, who was the representative director of the securities company 27% of the issued and outstanding shares, received a separate loan from the Chairperson of the board of directors, who was the only Korea Chairperson at the time of the first entry into the Republic of Korea by the foreign large enterprise group 1 and 2, and that the Defendant had been aware of the fact that the Defendant was not an affiliate of the securities company 2 at the time of the above 00 billion won, and that the Defendant was not an affiliate of the securities company 1 at the time of the first entry into the Republic of Korea. However, the lower court determined that the Defendant had been aware of the fact that the Defendant was not an affiliate of the securities company 40 billion won prior to the instant loan, and that the Defendant had not been aware of the fact that the Defendant was not a director of the instant loan by the second-party loan.

(2) The crime of breach of trust is established when a person administering another person's business obtains pecuniary benefits or causes a third party to obtain such benefit through an act in violation of his/her duty. In this case, "act in violation of his/her duty" includes any act in violation of a fiduciary relationship with him/her by failing to perform an act that is naturally expected to not be done in accordance with the provisions of law, terms of a contract or the good faith principle, or by performing an act that is expected not to be naturally done, and there is no need to consider whether such act is legally effective (see Supreme Court Decisions 9Do1095 delivered on June 22, 199; 9Do3338 delivered on December 8, 200, 99Do2639 delivered on September 28, 201). It does not constitute an act in violation of a fiduciary relationship with the Defendant, as it does not appear that an act in violation of a fiduciary relationship with the Defendant, such as property loss, even if the Defendant did not actually incur a loss to another person.

B. Regarding the misapprehension of facts and misapprehension of legal principles due to violation of the rules of evidence

(1) 원심은, 피고인에 대한 이 사건 공소사실 중 매매거래유인목적의 시세변동거래행위 부분에 관한 증권거래법위반의 점에 대하여, 그 거시 증거를 종합하여, 증권사 1은 1954. 8. 30. 설립하여 1988. 8. 25. 상장 등록된 증권회사로서 자본금이 2000. 2. 7. 이전에는 73,670,075,00원(보통주 8,688,385주, 우선주 6,045,630주, 합계 14,734,015주)이고 2000. 2. 7. 감자 및 액면 분할하여 자본금이 66,113,038,000원(66,113,038주)이 되었으며 주요주주는 홍콩계 회사로서 공소외 2이 대표이사로 있는 외국회사와 진승현이 대주주로 있는 엠씨아이코리아(MCI Korea)가 공동으로 투자하여 설립한 케이오엘(KOL, Korea Online)이며 위 회사가 증권사 1의 주식 69.95% 가량을 직·간접적으로 소유하고 있었던 사실, 그런데 1999. 10. 5.경 피고인은 홍콩에서 공소외 2의 부탁으로 진승현에게 국제전화를 하여 공소외 2가 증권사 1 주식 1,000만 $ 상당을 구입해 주면 두 달 이내에 원금에 연 15%의 금리를 가산하여 되사주겠다고 한다면서 지금 해외에서 자신이 회장으로 있는 그룹의 로드쇼 중이고 주가가 높아야 높은 가격에 펀딩을 할 수 있는데 지금은 주가가 너무 낮아서 로드쇼를 하기도 힘들다라는 취지의 전화 통역을 한 사실, 이에 위 진승현은 같은 해 10. 7.경부터 같은 해 11. 17.경 사이에 미화 1,000만 $ 이상의 증권사 1 주식을 매집하면서 전일의 종가 또는 직전가보다 고가의 매수주문을 하고 장중거래에서도 직전가 또는 상대호가에 비하여 고가의 매수주문을 하는 등 이 사건 고가 매수거래를 하여 주가를 인위적으로 고가로 형성시켰고 위 주식을 매입하는 데 자금이 부족하자 위 진승현은 위 그룹과 연락하여 그 중 80억 원 가량은 증권사 1으로부터 이를 대출 받는 형식으로 지원 받아 주식을 매수하기까지 한 사실, 당시 발행된 증권사 1 전체주식 약 860만 주 중 케이오엘(KOL)이 소유하고 있는 주식 69.95%와 증권금융에서 보유하고 있는 5%를 제외하면 시중에 유통 중인 주식은 약 25%에 불과하고 당시 1주당 가격을 14,900원으로 계산한다면 미화 1,000만 $ 상당은 시중 유통물량의 약 절반 가량을 매입할 수 있는 막대한 규모의 자금인 사실, 실제로 위 진승현의 매집으로 같은 해 10. 7.부터 같은 해 11. 17. 사이에 증권사 1의 주가는 약 13,000원대에서 약 34,000원대까지 상승한 사실, 당시 위 그룹에서는 위 케이오엘(KOL)의 증자를 고려하고 있었고 공소외 2는 위 진승현의 개입으로 증권사 1의 주가가 계속하여 상한가를 기록하자 피고인에게 상당히 기분이 좋다는 말을 하기까지 한 사실, 1999. 11. 하순경 공소외 2이 국내에 들어와 피고인, 위 진승현, 공소외 3, 에이비엔암로아시아(ABN Amro Asia) 증권사의 회장인 로저 등 5인이 서울시 강남구 삼성동 소재 '개구리'라는 술집에 모여 술을 마시면서 공소외 2이 위 진승현에게 증권사 1 주식을 매집해 주어서 고맙다고 하며 위 에이비엔암로아시아(ABN Amro Asia) 증권사에서 증권사 1 주식의 50%를 주당 50,000원에 사려고 하고 있다는 이야기를 하기도 하였으나 이후 위 지분 매각은 성사되지 못한 사실, 실제로 공소외 2의 그룹은 1999. 10.경부터 미화 192,000,000$을 목표로 기존 발행주식총수의 40% 규모의 케이오엘(KOL) 사모유상증자를 추진 중에 있었고 2000. 3.부터 같은 해 4. 사이에 케이오엘(KOL) 주식 9,000,000주를 주당 미화 13$(US $13)에 사모 증자하는 데 성공한 사실을 각 인정한 후, 증권사 1의 자본금의 규모와 발행주식의 총수, 진승현이 매집한 주식의 규모, 피고인이 진승현으로 하여금 주식을 매수하게 한 경위와 역할, 피고인이 증권사 1에서 차지하는 지위, 이 사건 거래의 동기와 태양, 그 주가의 추이 및 당시의 거래상황 등을 종합하여 보면 피고인은 증권사 1의 대표이사로서 단순한 통역의 역할을 한 것에 지나지 않는 것이 아니라 공소외 2 및 진승현과 공모하여 이 사건 매매거래를 하였다 할 것이고, 이 사건 매매거래는 증권사 1의 주가를 인위적으로 조작하여 상승시킴으로써 증권사 1의 지분 매각 또는 유상증자를 원활하게 하기 위하여 행하여진 변칙적 거래로서 '유가증권의 시세를 변동시키는 매매거래'에 해당하고 이와 같이 인위적인 조작으로 주가를 상승시킨 것은 비록 유가증권시장에서의 일반투자자들을 오인시켜 유가증권 매매거래를 유인하는 것을 직접 목적으로 하는 경우는 아니라 하더라도 증권사 1의 지분 매각 또는 유상증자를 원활하게 할 목적으로 시세를 조종하는 과정에서 일반 투자자로 하여금 위 증권사 1의 주식이 유망한 것처럼 오인시켜 그 주식의 매매거래를 유인하게 된다는 것도 알 수 있었던 이상 일반투자자들의 매매거래를 유인할 목적도 있었다고 봄이 상당하다고 판단하고, 이 부분 공소사실에 대하여 유죄로 판단하였다.

(2) Article 188-4 (2) of the Securities and Exchange Act provides that "no person shall do any act falling under any of the following subparagraphs for the purpose of inducing the sale and purchase transaction of securities at the securities market or Association brokerage market" and subparagraph 1 of the same Article provides that "the act of making, entrusting, or being entrusted with, the sale and purchase transaction of securities with a false or misleading knowledge that the sale and purchase transaction of securities is in active condition or with any other person," and "the purpose of inducing the sale and purchase transaction" is to mislead investors into being formed by the natural supply and demand principle in the securities market and to attract them to make the sale and purchase transaction of securities by misunderstanding that the market price is formed by the natural supply and demand principle in the securities market," and the decision of the court below is just in light of the nature and total number of securities issued, motive and type of the sale and purchase transaction, the trend of the market price at the time of the sale and purchase transaction, and there are no errors in the misapprehension of the legal principles as seen above, and there are no errors in the misapprehension of legal principles as seen and the defendant's of evidence.

2. Judgment on the grounds of appeal by the prosecutor

A. The lower court found that the Defendant conspired with the Defendant to purchase and sell securities on the 199-day basis, i.e., the actual purchase and sale price of the instant securities, i.e., the Defendant, and Nonindicted Party 2, who wants to purchase and sell securities on the 10-day basis, and delivered them to the Defendant on the 199-day market, so that the Defendant could have mistakenly purchased and sold securities on the 19-day basis, i.e., the purchase and sale price of the listed securities by means of eight accounts from October 7, 199 to November 17, 199, and thus, found that the Defendant conspired to buy and sell the listed securities at the 19-day market price prior to the 19-day market price manipulation, i.e., the 10-day market price manipulation prior to the 19-day market price manipulation prior to the 19-day market price manipulation prior to the 19-day market price manipulation prior to the 19-day market price manipulation.

B. At least two co-offenders who are jointly engaged in a crime do not legally require a certain type of 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 their will either successively or implicitly through several persons, a conspiracy relationship is established if it was formed between them. A person who did not directly participate in an act of conspiracy is held liable as a co-principal even if he did not participate in the act of conspiracy (see Supreme Court Decisions 9Do4923, Mar. 14, 200; 2001Mo193, Apr. 10, 200; 2000Do3485, Apr. 12, 2002; 200Do3485, Apr. 12, 2002). However, if the defendant reasonably proves that it constitutes a crime of conspiracy or conspiracy with an empirical rule-based crime, it is not reasonable to prove that it constitutes a direct and indirect relation between the defendant and the defendant's act of conspiracy.

C. From the perspective of the facts established by the lower court, it is reasonable to view that the Defendants and Nonindicted 2 engaged in a public offering of new and outstanding securities market for the purpose of the sale and purchase of new and outstanding securities at the time of the above public offering of new and outstanding securities market for the purpose of 10% of the total market price increase by the Defendant and the Defendant’s sales and purchase of new and outstanding securities market for the purpose of 10% of the total market price increase by the Defendant’s offering of new and outstanding securities market for the purpose of 10% of the total market price. Moreover, the lower court determined that the Defendant’s purchase and sale of new and outstanding securities market for the purpose of 10% of the total market price of the securities market at the time of the public offering of new and outstanding securities market for the purpose of 10% of the total market price increase by the Defendant’s offering and sale of new and outstanding securities market for the purpose of 20% of the total market price increase by the Defendant’s offering of new and outstanding securities market for the purpose of 10% increase.

3. The number of offenses against the Securities and Exchange Act and the scope of reversal

A. Of the facts charged against the Defendant in violation of the Securities and Exchange Act, the lower court found the Defendant guilty on each of the following facts: (a) the conspiracy purchase (violation of Articles 207-2 and 188-4(1)2 of the Securities and Exchange Act); (b) the market price increase trading (violation of Articles 207-2 and 188-4(2)1 of the Securities and Exchange Act); and (c) the disguised conduct (violation of Articles 207-2 subparagraph 2 and 188-4(2)1 of the Securities and Exchange Act) as a concurrent crime under the former part of Article 37 of the Criminal Act; and (b) the lower court acquitted the Defendant on each of the remaining acts; and (c) acquitted each of the aforementioned acquitted parts.

B. However, if several acts falling under the same name of crime are continuously conducted for a certain period under the single and continuous criminal intent, each act should be punished as a single comprehensive crime (see Supreme Court Decision 96Do417, Apr. 23, 1996). According to the facts and records established by the court below, the defendant conspired with 1 stock company, which is listed securities, with a single and continuous purpose of controlling the market price by collecting them in large quantity, and under the intention of 1 stock purchase and sale of listed securities, it is recognized that the defendant erred in the misapprehension of the legal interest of 1 stock purchaser, 1 stock market price immediately before the securities market, and 1 stock price increase by 200 securities market price increase by 1 stock market price increase, 200 securities market price increase by 1 stock market price increase by 1 stock market price increase by 200 securities market price increase by 1 stock market price increase by 20 securities market price increase by 20 securities market price increase by 1 stock market price increase by 200 securities market price increase.

C. Therefore, inasmuch as a party member received an appeal from the prosecutor on some of the facts charged in this case against the defendant's violation of the Securities and Exchange Act, the remaining guilty charges, i.e., violation of the Securities and Exchange Act due to market price fluctuation transaction, cannot be exempted. In addition, as in this case, the appellate court partially convicted and partially acquitted the facts charged, and the defendant and the prosecutor appealed against the judgment, but the defendant and the prosecutor appealed against the judgment. However, the defendant's appeal against the guilty portion is without merit, and the prosecutor's appeal against the acquittal portion is with merit. In a case where the defendant's appeal against the acquittal portion is justified, if the crime which the appellate court found the guilty and the crime of not guilty guilty are concurrent crimes under the former part of Article 37 of the Criminal Act, the guilty part of the appellate court's judgment should be reversed together with the acquitted part (see Supreme Court Decisions 200Do778, Jun. 13, 200; 200Do2123, Nov. 28, 2000).

4. Therefore, the entire judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Song Jin-hun (Presiding Justice)