자본시장과금융투자업에관한법률위반등
All appeals by the Defendants and the Prosecutor are dismissed.
1. Summary of grounds for appeal;
A. Defendant A 1) misunderstanding of facts and misunderstanding of legal principles, Defendant’s private futures trading site operated by the Defendant (hereinafter “instant site”).
(ii) and Home Rating System (hereinafter referred to as “HTS”)
) The users did not invest in the actual financial product, but did not sell or purchase virtual items by predicting the fluctuation of the COS200 index. Therefore, the Defendant’s opening and operation of the instant website and HTS may constitute the establishment of gambling space for the said users, but the said Act is the Financial Investment Services and Capital Markets Act (hereinafter “Capital Markets Act”) under the premise of actual sale and purchase of financial investment instruments by market participants.
(ii) the first instance sentence of unfair sentencing (two years of imprisonment) is too unreasonable and unfair.
B. The punishment of Defendant C 1 (ten months of imprisonment) is excessively unreasonable.
C. Prosecutor 1) The first instance judgment on the calculation of the amount of additional collection against Defendant A is erroneous in calculating the amount of additional collection, by excessively calculating and deducting the amount refunded to members of the site of this case, and the amount allocated to the Defendant to his accomplices. Defendant A shall additionally collect KRW 2,278,354,47 of the actual amount of profit acquired by Defendant A as a result of the establishment of a gambling space of this case. 2) The first instance judgment on each of the Defendants of unfair sentencing against each of the Defendants is unreasonable.
2. Determination:
A. Article 3(1) of the Financial Investment Services and Capital Markets Act regarding Defendant A’s mistake of facts and misapprehension of the legal doctrine provides that “financial investment instruments” refers to money or other valuable property at a specific time in the present or in the future with a view to gaining a profit or avoiding loss.”
Any right acquired by an agreement to pay shall be acquired by such agreement.