[2] Whether a series of orders issued without an intention to purchase in order to show a large volume of purchase orders constitutes market price manipulation based on actual trading under Article 188-4 (2) 1 of the Securities and Exchange Act (affirmative)

[3] The number of crimes in which multiple acts falling under the name of the same crime are continuously conducted for a certain period under the single and continuous criminal intent and where the legal interest of the damage is the same (=general crime)

[4] The case holding that a single crime of violation of the prohibition of market price manipulation is established in a case where market price manipulation was conducted in several items of securities through the method of offering orders for the purpose of gaining profits from the sale of stocks, raising stock price, and selling stocks held at a higher price

[5] The meaning of "profit derived from a violation" under the proviso of Article 207-2 of the Securities and Exchange Act and the method of calculating the "profit"

[2] Although a purchase offer or purchase order which does not reach the conclusion of a sale and purchase contract has the nature of inducing a third party to trade securities with the effect of increasing or lowering the price of securities, so long as the sale and purchase transaction of securities under Article 188-4 (2) 1 of the Securities and Exchange Act constitutes "the act of making a false or misleading appearance of active trading or causing a fluctuation in the market price, or the act of entrusting or being entrusted with it," and only so, it constitutes the type of market price manipulation through the so-called real transaction prohibited under Article 188-4 (2) 1 of the Securities and Exchange Act.

[3] Where a number of acts falling under the name of the same crime continues to be conducted for a certain period under the single and continuous criminal intent, and the legal benefits of such damage are the same, each of these acts shall be punished by a single comprehensive crime.

[4] The case holding that a single crime of violation of the prohibition of market price manipulation is established in the event that market price manipulation was conducted with respect to various items of securities over several occasions by issuing orders for the purpose of gaining profits from the sale of stocks, raising stock price, and selling stocks in excess of the above price, the total crime of violation of the prohibition of market price manipulation is established

[5] The term "profit accrued from a violation" under the proviso of Article 207-2 of the Securities and Exchange Act refers to the loss amount, which is set at the same time, which is the difference between the profit accrued from the violation and the gross income accrued from the transaction concerned, i.e., 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 in the case of Stock Exchange) from the total sales amount of the securities transaction related to the actual transaction in addition to the total sales amount.

A. Examining the relevant evidence in light of the records, the court below's decision of the court of first instance which found the defendant guilty of the facts constituting the crime is acceptable, and there is no error of law by misconception of the facts against the rules of evidence as alleged.

B. 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 with the intention to attract anyone to trade in the securities market or the Association brokerage market" (hereinafter referred to as the "Act") and subparagraph 1 provides that "the act of trading or entrusting or being entrusted with the trading that misleads another person or another person to believe that the trading price of securities is so active as to cause a fluctuation in the market price," and "the purpose of this "the act of inducing the trading" refers to the act of inducing investors to trade securities by misunderstanding that the market price is naturally formed by the principle of natural demand and supply on the securities market, or that there is no possibility of a fluctuation in the market price and trading volume to be formed in the free competition market according to the normal demand and supply market, and therefore, it constitutes 20 types of securities purchase and sale order and sale order which are issued at the time of 200 types of securities purchase and sale order. Therefore, the determination of whether the trading price falls under the category and effect of 200 types of securities purchase and sale order.

According to the records, the defendant's stock transaction of this case can be seen as a market price manipulation through a real transaction which is prohibited under Article 188-4 (2) 1 of the Act, since the purchase transaction of this case was conducted for the purpose of inducing the sale of the purchased stocks at a high price, increased the remaining purchase price by issuing a large volume of purchase orders, or deepening the change in the remaining purchase price, thereby inducing ordinary investors to purchase the stocks, and then cancelling the purchase order after selling the purchased stocks at a high price. In light of the above legal principles, the sale transaction of this case was conducted for the purpose of inducing the sale and purchase.

In the same purport, the decision of the court below that the transaction of this case was in violation of Article 188-4 (2) 1 of the Act is just and it is not erroneous in the misapprehension of legal principles as otherwise alleged in the ground of appeal.

2. As to the third ground for appeal

Where several acts falling under the name of the same crime continue to be committed for a certain period under the single and continuous criminal intent, and where the legal benefits of the damage are the same, each act should be punished by a single comprehensive crime (see Supreme Court Decision 96Do417, Apr. 23, 1996, etc.).

According to the facts established by the court below and records, the defendant purchased shares at a high price and sold the purchased shares at a higher price, and had a single and continuous criminal intent for the purpose of earning profits from the difference, and with a single and continuous criminal intent from August 1, 200 to February 1, 2001, the defendant increased the balance of purchase orders by offering a large number of illegal purchase orders from around August 1, 200 to around February 1, 200, or increased the purchase price by inducing an ordinary investor to purchase the shares at a high price and selling the purchased shares at a high price and cancelling the purchase order, 168 items of 7,542 times in total, in the same way as the cancellation of the purchase order. Accordingly, we find that the court below erred in the misapprehension of legal principles as to each of the above crimes under Article 27-1 of the Act, since the legal interest protected by the crime of this case is a social legal interest of securing fairness and smooth circulation of securities transactions at the securities market or Association brokerage market, and each of the property interests of each of the owners or issuers, etc.

3. Regarding ground of appeal No. 2

The proviso of Article 207-2 of the Act provides that when the amount equivalent to three times the profit earned or the loss avoided by a violation of Article 188-4 (2) 1 of the Act, which prohibits a market price manipulation through a real transaction, exceeds 20,000,000 won, the amount equivalent to or less than three times the profit or the loss amount evaded. "the profit accrued from the violation" is the concept opposite to the "loss amount stipulated together by the violation," and "the loss amount" refers to the difference between the profit accrued from the violation in question, that is, the total amount of the profit accrued from the transaction, and the difference between the profit accrued from the transaction in question and the total amount of the profit accrued from the transaction in question. Therefore, the profit accrued from the market price manipulation in this case refers to the net profit remaining after deducting the purchase commission, the sale commission, and the special tax for rural development in the case of the Stock Exchange) for the transaction in question, in addition to the total sale amount of the

However, according to the records, net trading profits are 88,521,970 won in total and 24,879,623,980 won in total and the total purchase price is 24,702,867,360 won in total and not considering trading expenses. However, the court below erred in calculating profits within the scope of a fine not exceeding 200 times in light of the above legal principles as to "profit accrued from the violation," which affected the profit accrued from the violation of Article 207-2 of the Act. The court below's reasoning is that the court below erred in calculating profits within the scope of a fine not exceeding 176,756,620 won in light of the above legal principles as to "profit accrued from the violation of the Act," which affected the profit accrued from the violation of Article 207-20 of the Act.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Ji-dam (Presiding Justice)