자본시장과금융투자업에관한법률위반
The judgment of the court below is reversed.
Defendant
A Imprisonment for three years, each of the defendants B, C, and D shall be punished by imprisonment for two years and six months.
1. Summary of grounds for appeal;
A. The Defendants recognized the changed facts charged on the sixth day of the trial of the court of the first instance, and withdrawn all of the allegations related to mistake of facts and misapprehension of legal principles while maintaining only the assertion on unfair sentencing.
Each sentence sentenced by the court below to the defendants (two years and six months of imprisonment for the defendants A and fine of 500,000,000 won for the defendant B, two years of imprisonment for the defendant B, three years of suspended execution, and fine of 200,000,000 won for the defendant C and D, one year and six months of suspended execution, and two years of suspended execution) are too unreasonable.
B. The prosecutor 1) misunderstanding of facts and misunderstanding of legal principles changed the subject matter of the adjudication due to the change of indictment at the trial as seen below as follows. Accordingly, the part of the remaining profit amount excluded from the subject matter of the adjudication among the allegation in this part - KRW 32,740,140,000 (= KRW 38,691,140,000 - KRW 5,951,000,000) is deemed to have been withdrawn. Since the Defendants’ market price manipulation was caused by the Defendants’ market manipulation, the causal relationship is recognized, and the profit amount generated from the violation is more than KRW 5,00,000,000,000. Furthermore, Article 443(2)1 of the Financial Investment Services and Capital Markets Act should be applied to the Defendants. 2) Each sentence imposed by the court below on the Defendants in unfair sentencing is too unreasonable.
2. Determination
A. Before the judgment on the grounds for appeal ex officio, the prosecutor examined ex officio prior to the judgment on the grounds for appeal for ex officio, and the prosecutor applied for changes in the indictment of this case as stated in the facts charged below. Since this court permitted this, the subject of the judgment was changed, the judgment of the court below cannot be maintained as it is.
However, the judgment of the court below is reversed ex officio as above.
Even if the prosecutor's assertion of mistake and misapprehension of legal principles is revised, it is still subject to the judgment of this court.