A. Prosecutor (De Facto misunderstanding and misunderstanding of legal principles);

As to the non-guilty part of the judgment of the court of first instance (the point of non-indicted 1's unfair trading using the account), first, although the defendant used the unfair trading in this case's account with non-indicted 1, who was the husband of the non-indicted 2, facilitates the crime by providing the above account to the defendant, and the defendant received a certain amount of compensation from the non-indicted 2, the judgment of the court of first instance that acquitted the defendant of this part of the facts charged is erroneous in misunderstanding of facts, and second, even if the defendant did not acquire real profits such as receiving compensation from the non-indicted 2, the "profit from the violation" does not constitute a element of the crime in this case's case's crime, and thus, the defendant was guilty of this part of the facts charged, the court of first instance erred in the misapprehension of legal principles.

B. Defendant

(i)misunderstanding of facts;

First, the Defendant did not use a deceptive scheme for the purpose of using unlawful means, schemes, or tricks in the instant broadcast or stock transaction or for the purpose of changing the market price of stocks. In other words, the Defendant broadcasted according to objective data such as media reports and published materials, financial statements, business reports, and reports of securities companies, not false or exaggerations at the time, but rather objective data and prospects based on Defendant’s own investment method. Even if a part of the items in a stock transaction are consistent with the broadcast recommendation and deemed to be a prior transaction prior to the broadcast, it is only a part of the fact that the Defendant continued the stock transaction prior to the extension of the stock transaction prior to the broadcast transaction which was personally used, and there are considerable cases where the Defendant suffered losses from the purchase or transaction after the broadcast sale or after the broadcast, it is not dependent upon or intended by the influence of the broadcast, and it cannot be said that the prior transaction itself is unfair under social norms.

Second, in relation to the profit amount that the defendant acquired, the property should be determined or excluded from the list of crimes, excluding all parts that do not have any causal relation with the defendant's act. In other words, since the price fluctuation is conducted by various factors, and the influence of the defendant's broadcasting is very limited, it cannot be deemed that the share price increase after the broadcast is conducted by the defendant's broadcast. Moreover, since the defendant's broadcast simply introduces items without presenting purchase and sale price or loss price, it is unreasonable to calculate the profit margin paid by trading stocks with the risk based on his own outlook as unjust profit. Accordingly, in calculating the profit amount, the profit margin paid by the defendant by trading the stocks with the risk, such as normal share price increase, etc. or the share price increase, which was already made before the defendant's broadcast, should be deducted from the list of crimes, and all items purchased after the sale or the broadcast after three days should be excluded from the list of crimes.

【Unjustifiable sentencing

The sentencing of the first instance court (one month of imprisonment, one hundred nine thousand won, two hundred thousand and sixty-eight5 won) is too unreasonable, and the sentencing of a surcharge is contrary to equity in light of similar cases.

2. Determination on the prosecutor's grounds for appeal

A. Article 443(1) proviso and Article 443(2) of the former Financial Investment Services and Capital Markets Act (amended by Act No. 11845, May 28, 2013; hereinafter “Capital Markets Act”) provides the benefit from a crime as part of the constituent elements of the crime and increases the punishment for the crime depending on the value thereof. In applying such provision, the principle of balanced criminal punishment or the principle of accountability that the appropriate balance between the crime and the punishment should be calculated by strict and careful calculation of the value of the benefit from the crime should not be undermined. Meanwhile, “the benefit from the violation” refers to the benefit that the offender gains from the violation, and where several persons jointly commit an unfair trade, such as manipulation of market prices, benefits from the crime refers to the entire accomplice who has participated in the crime, and does not include the benefit accrued to a third party who has not participated in the crime (see, e.g., Supreme Court Decision 201Do3181, Jul. 14, 2011).

나. 위 법리에 기초하여, 이 사건 공소사실 중 공소외 1의 계좌를 이용한 부정거래행위의 점(제1심판결 [별지2] 범죄일람표 중 피고인이 공소외 1의 계좌를 이용하여 ◇◇◇◇◇, ☆☆☆☆, ▽▽▽▽, ◎◎◎◎◎◎, ◁◁◁◁, ▷▷▷▷▷, ♤♤♤♤, ◈◈◈◈, ◐◐, ♡♡♡♡♡♡ 10개 종목에 관하여 방송과 관련한 총 20회의 주식 매수·매도거래를 하여 총 60,871,769원의 부당한 이익을 취득하였다고 기소된 부분)에 관하여 본다.

The fact that the defendant made a purchase and sale transaction of shares before and after broadcasting as stated in the corresponding column of the judgment of the court of first instance (attached Form 2) by using the account of Nonindicted Party 1 is also recognized by the defendant, and the fact that the transaction is identical with the remaining shares transaction as seen below and constitutes an unfair trading under Article 178 of the Capital Markets Act is recognized.

However, in full view of all the evidence submitted, it is insufficient to recognize that the above gains derived from the above offense belong to the defendant. Rather, according to the records, the defendant and the non-indicted 2 and the non-indicted 1 were unlikely to engage in monetary transactions in the investigation process (the investigative record page 21) and the non-indicted 2 testified that the right of the court of first instance to withdraw money from the non-indicted 1 account was only for the non-indicted 2. In light of the fact that the court of first instance testified that the right of the non-indicted 2 to withdraw money from the non-indicted 1 account was only for the non-indicted 2, it is reasonable to deem that all the profits and losses arising from the transaction using the above non-indicted 1 account belong to the non-indicted 2. However, there is no evidence that the non-indicted 2 was involved in the defendant's unfair

3. Judgment on the grounds for appeal by the defendant

A. As to the assertion of mistake of fact

(1) Article 178(1)1 of the Financial Investment Services and Capital Markets Act prohibits “act of using unfair means, schemes, or tricks” in relation to trading and other transactions of financial investment instruments. Here, “unfair means, schemes, or tricks” refers to any means, schemes, or tricks deemed unfair by social norms. Furthermore, whether an act of denying a certain act is prohibited by statutes, etc., and whether such act is likely to undermine fair competition by causing other investors to make wrong judgments, thereby impairing fair competition and causing damage to bona fide investors, thereby undermining the fairness, reliability, and efficiency of the capital market (see Supreme Court Decision 2013Do9933, Jan. 16, 2014).

In addition, Article 178(2) of the Financial Investment Services and Capital Markets Act prohibits “act of using a deceptive scheme” for the purpose of trading, such as trading of financial investment instruments, or facilitating a fluctuation in market price. The term “defensive scheme” refers to a means, scheme, trick, etc. to induce a certain act by deceiving a trading partner or an unspecified investor (see Supreme Court Decision 201Do3180, Jul. 14, 201, etc.).

Furthermore, Articles 176 and 178 of the Financial Investment Services and Capital Markets Act, which prohibit market price manipulation and unfair trading, are the social legal interests that ensure the fairness and smooth circulation of the trading of stocks, etc., and individual property interests such as stock owners, do not directly protect such legal interests. Thus, in a case where multiple acts falling under Articles 176 and 178 of the Financial Investment Services and Capital Markets continue to be repeated for a certain period following the single and continuous criminal intent for the purpose of stock price manipulation, a single comprehensive crime of violation of the prohibition of market price manipulation and unfair trading under Articles 176 and 178 of the Financial Investment Services and Capital Markets Act is established, and therefore, a single comprehensive crime of violation of Article 178(1)1 and Article 178(1)2 of the Financial Investment Services and Capital Markets Act is established (see Supreme Court Decision 2011Do8109, Oct. 27, 201).

Meanwhile, “profit from a violation” under the proviso of Article 443(1) and (2) of the Financial Investment Services and Capital Markets Act refers to a profit arising from a transaction related to the violation, which is recognized as a causal relationship. In ordinary cases, the causal relationship may be calculated by calculating the gross income from a transaction related to the violation by deducting the total cost for the transaction from the total income from the total income from the transaction related to the violation. However, in cases where there are circumstances to deem that it is unreasonable to recognize the value of the profit from the violation in a specific case as above, the profit from the violation should be calculated in consideration of the motive, circumstance, mode, period, involvement of a third party, securities market situation, and all other factors that may have a significant impact on the share price (see, e.g., Supreme Court Decision 2011Do8109, Oct. 27, 2011).

In light of the aforementioned legal principles, in full view of all the following circumstances acknowledged by the evidence duly examined and adopted by the first instance court as to the instant case, it can be sufficiently recognized that the Defendant committed an unfair trading using a means, scheme, or bridge deemed unfair by social norms under Article 178(1)1 of the Financial Investment Services and Capital Markets Act by making a transaction of purchase and sale of each broadcast and related shares as stated in the judgment of the first instance court [Attachment 1] (hereinafter “the crime sight table of this case”). In addition, it can be sufficiently recognized that the Defendant committed an unfair trading using a deceptive scheme for the purpose of trading under Article 178(2) of the Financial Investment Services and Capital Markets Act or for the purpose of changing the market price.

① Around 209, the Defendant, who was a securities analysis expert with knowledge and influence in the industry through writing related to securities, broadcasting, lectures, consulting, etc., and was employed by ○○○○○○ TV, which contributed to various securities-related programs at the time of the instant case, and made a securities broadcast up to 10 times a day on an average of 4 times a day from 2009 to 10 times a day. At the time of entry, the Defendant promised to comply with the code of ethics with the content that “it does not receive personal benefits that may undermine fairness in relation to the duties from interested parties,” and that “it does not take any unjust benefits that do not go beyond the upper limit.”

② Nevertheless, as indicated in the list of crimes in this case, the Defendant, while broadcasting as above, sold the volume of prior purchase within 10 days from the broadcasting date or at least 2 business days from the broadcasting date (including holidays and holidays, and most of which are included within 2 business days) or traded shares by means of making it possible for the Defendant to enter into a contract immediately before or after broadcasting in accordance with the order for sale, which was submitted at a predetermined price in advance prior to or after the broadcasting, to a total of 90 items, by using four borrowed accounts in the name of the Defendant’s wife and the mother’s wife over 117 times.

③ As can be seen, the Defendant presented and recommended a specific item to the general investors as promising items in the broadcast, and took profits from market price by selling the volume, which had been previously purchased by the general investors prior to the broadcast, at a short time due to the influence on the broadcast, at a time when the share price increases in the short term. After the broadcast, the Defendant took a method of minimizing the sale loss or extinguishing risks even if the share price increases or the share price drops, as described in the list of crimes in this case, by repeated transactions over 117 times before and after the broadcast, thereby realizing the profits and losses totaling up to 109,272,685 won.

④ Such an act by the Defendant is unilaterally favorable to the Defendant who is a broadcastinger compared to the ordinary investors. If a general investor wishes to encourage purchase on the broadcast of the items that he left in advance and purchase by a general investor who trusted the broadcast, it is sufficiently acknowledged in light of the empirical rule that if he/she had known in advance that there was a possibility that a general investor would incur losses after purchasing shares at a price that is temporarily higher than that of the ordinary investors, he/she would not purchase the recommended items with trust in such broadcast if he/she had known in advance that there was a possibility that a general investor would incur losses after purchasing shares at a price that is temporarily higher than that of the ordinary investors.

⑤ In light of the nature of the Defendant’s broadcast content, given that there exist various unforeseeable multiple factors and variables, it is difficult for the Defendant to put the objective heat to the items recommended by the broadcast as above. However, if the Defendant, at least four times a day’s average, makes a broadcast at intervals of 2 to 3 hours per day, including the analysis of securities market and items (in 69 pages of investigation records), he/she should immediately broadcast the Plaintiff, at intervals of 10 times. As such, the broadcast production team’s prior review or prior consultation was not possible (in 1438 pages of investigation records). The Defendant, without independent collection or analysis of data, prepared broadcast content based on the degree of data collected from the securities company (in 1962 pages of investigation records, hereinafter the same shall apply).

6. Accordingly, the Defendant’s broadcast content is difficult to view that there was no accurate analysis based on objective data or the process of verifying information, and thus, it was eventually constituted based on subjective connotation or emphasis. In fact, it was revealed that considerable parts were different from objective facts (hereinafter “Investigation Record 1766 pages”).

7. Furthermore, in selecting the recommended items of broadcasting, the broadcast was made including the items that the Defendant himself/herself corresponds to the items prior to the broadcast or those items, such as the contents set out in the list of crimes of this case, and the Defendant also constitutes 16 items, except for those items traded one time before and after the broadcast (the investigative record 837 pages).

8) In addition, even if the Defendant’s recommendation for concentrating only one of the items prior to the broadcast, among the list of crimes in this case, was 20 or more times and did not appear to have been revealed in the broadcast itself, most of the contents were the intensive broadcast that recommended one item (i.e., an investigation record, 1957 pages, 1983 pages, etc.).

Article 22(1) of the former Review Regulations provides that “Any person who is a securities broadcasting service provider shall be punished by imprisonment with labor for not more than 5 years, or by imprisonment with labor for not more than 5 years, or by imprisonment with labor for not more than 5 years, or by imprisonment with labor for not less than 5 years, or by imprisonment with labor for not less than 5 years, or by imprisonment with labor for not more than 5 years, or by imprisonment with labor for not more than 5 years, or by imprisonment with labor for not more than 5 years, or by imprisonment with labor for not more than 5 years, or by imprisonment with labor for not more than 5 years, or by imprisonment with labor for not more than 5 years, or by imprisonment with labor for not more than 5 years, or by imprisonment with labor for not more than 5 years.”

In addition, according to the records, in calculating the profits earned by the defendant in this case, the first instance court determined the average purchase price (the purchase price ± the purchase price ± the average sale price ± the sale price) and the average sale price (the sale price ± the sale quantity) by the method of deducting the transaction commission and securities transaction tax and the special rural development tax actually occurred after multiplying the difference between the sale price and the sale price ± the sale price (the investigation record 640 pages), and in light of the legal principles and facts of the above case as seen earlier, it is appropriate to calculate the profit amount by the above method in this case. The difference between the purchase price and the sale price is the gains actually realized by the defendant through the unfair trading in this case and all of them are acquired by the defendant. The first instance court did not have any ground to see that the increase in the market price after the purchase and the sale price should be excluded from the market price increase due to the unfair trading in this case, and it should be calculated by including all the above parts in the causal relation.

On the other hand, the Defendant’s assertion that all the items purchased after broadcasting should be excluded from the list of crime days cannot be found among each transaction on the list of crimes of this case (i.e., items purchased after broadcasting). As such, among items purchased, sold, and broadcasted by the same person, all of the items were excluded before prosecution, and the items purchased after broadcasting were excluded from all the items, and less than 2283 pages of investigation records), the above assertion is without merit.

In the end, there is no reason to misunderstanding of facts by either mother or defendant.

B. As to the assertion of unfair sentencing

In light of the background and motive leading up to the instant case, the period, frequency, and amount of the instant crime, the nature of the instant crime in light of the Defendant’s occupation and professional ethics, and the method and form of the instant crime, the profit amount the Defendant acquired by the instant crime, the circumstances that the Defendant was investigated and tried after committing the instant crime, and up to the trial, and other circumstances that appear to be conditions for sentencing indicated in the records, such as the Defendant’s age, character and behavior, environment, family relationship, etc., the sentencing of the first instance court against the Defendant is too unreasonable. Thus, the Defendant’s allegation of unfair sentencing is without merit.

Furthermore, the collection of profits from criminal acts against the defendant under the Act on Special Cases concerning the Regulation and Punishment of Criminal Proceeds Concealment is consistent with the justice of criminal justice and thus cannot be deemed as going against the principle of equity. Therefore, this part of the claim is without merit.

4. Conclusion

Therefore, since both the prosecutor and the defendant's appeal are without merit, they are all dismissed under Article 364 (4) of the Criminal Procedure Act (However, in accordance with Article 25 of the Regulations on Criminal Procedure, since the facts constituting the crime in the judgment of the court of first instance are obvious that "the December 7, 2012," each of "the facts constituting the crime in the judgment of the court of first instance 20 and the non-guilty part in the judgment of the court of first instance 2, 2012", it is corrected to

Judges Yellow-ju (Presiding Judge)