자본시장과금융투자업에관한법률위반
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for three years.
3,637,303 won shall be additionally collected from the defendant.
1. The abstract of the grounds for appeal and the defense counsel’s submission of the written opinion after the lapse of the period for appeal shall be considered to the extent of supplement in case of appeal;
A. The Defendant did not commit the instant market price manipulation in collusion with L and K, and the Defendant did not commit the instant market price manipulation in collusion with L and K.
L/K is not an accomplice for each of the crimes in this case, and its profits should be excluded from the calculation of unjust enrichment in this case.
(2) The first market price manipulation and the second market price manipulation with respect to the V shares for the calculation of unjust enrichment in relation to V Co., Ltd. (hereinafter “V”) remains for two months, and the subject is the same as the Defendant’s criminal intent. Thus, it constitutes a series of crimes, which constitute a single crime.
Therefore, in calculating the unjust enrichment, the total period of crime should be added to the calculation.
(3) The error of calculation of unjust enrichment and additional collection amount recognized by the lower court is as follows.
① The profits accrued from the account in the name of another person without specifying the profits accrued to the accused have also been included in unjust enrichment.
(2) In calculating the amount of profit, the person did not consider factors such as external share price increase.
(3) In calculating unjust enrichment and additional collection, transaction expenses, such as commission and securities transaction tax, have not been deducted.
(4) An error in calculation shall exist.
(4) The amount of KRW 150 million paid by the Defendant from I is not a price manipulation fund for the instant crime, but a simple loan amount of KRW 150 million.
B. The sentence of the judgment of the court below on unreasonable sentencing (four years of imprisonment) is too unreasonable.
2. Determination
A. As to L/K’s accomplices and related unjust enrichment, the Defendant also asserted the same purport as the grounds for appeal in this part of the judgment below.
The lower court’s judgment is the Defendant and.