A. misunderstanding of the legal doctrine (as to the calculation method of the amount of profit per side) the Defendant’s shares 27,800 shares acquired by using undisclosed information, which were sold after December 22, 2015, which was the first highest closing date after the disclosure of information, to the shares sold on or after December 22, 2015, should also be calculated as realization profit, as in the shares sold before that date.

B. The punishment sentenced by the lower court (one year of imprisonment and a fine of 250 million won) is too unreasonable.

2. Determination

A. The term “profit accrued from a violation” under Article 443(1) and (2) of the Financial Investment Services and Capital Markets Act (hereinafter “Capital Markets Act”) means the profit arising from a transaction related to the violation, which is acknowledged as having relation to the risk arising from the violation.

In ordinary cases, profits related to the person can be calculated by calculating the difference from the gross income generated from a transaction related to the violation after deducting the total expenses for the transaction. However, in cases where there are circumstances to deem that recognizing the value of profits generated from a specific violation in the above-mentioned manner is unfair, the profit recognized as having a relationship with the person should be calculated by comprehensively taking into account the motive, circumstance, mode, period, third party intervention, securities market situation, and all other factors that may have a significant impact on the stock price, taking into account the legislative intent of the above-mentioned provision and the responsibilities, which are the major principle of criminal law, in order to eradicate the fraudulent unfair trading (see, e.g., Supreme Court Decisions 2009Do1374, Jul. 9, 2009; 2017Do1616, May 17, 2017).