[2] The number of crimes committed in a case where a false purchase order, a high purchase order, a conspiracy and trade order, etc. are repeated for the purpose of price manipulation of stocks (=general crime)

[3] The meaning of "the subjective constituent elements of the crime of violating Article 188-4 (1) of the Securities and Exchange Act, which are "the purpose of misleading people to believe that the trading is booming sexually or causing other people to make wrong judgments"

[4] The meaning of "purposes to attract trade to trade" under Article 188-4 (2) of the Securities and Exchange Act concerning the prohibition of market price manipulation, etc. and the standard for determining whether the transaction constitutes "the trading that misleads a person to know that the securities transaction constitutes a active trading or changes the market price" under subparagraph 1 of the same Article

[5] Whether the punishment of a fine for aiding and abetting a manipulation for market price manipulation may be imposed concurrently and mitigated (affirmative)

[6] The meaning of "profit derived from the violation" under the proviso of Article 207-2 (1) and Article 207-2 (2) of the Securities and Exchange Act and its calculation method

1. As to the Defendants’ grounds of appeal

The credibility of a confession made by the prosecutor cannot be said to be doubtful solely on the grounds that the confession made by the defendant is different from the legal statement or that it is excessively unfavorable to the defendant. In determining the credibility of a confession, the credibility of the confession shall be determined in consideration of the following: (a) whether the contents of the confession statement itself have objectively rationality; (b) the motive or reason behind the confession; (c) what is the reason why the confession was made; and (d) the circumstances leading up to the confessions, other than the confessions, do not conflict with or conflict with the confessions; and (e) whether there is a situation in which the confessions by the defendant would give rational doubts to the motive or process of the confessions (see Supreme Court Decision 200Do5442, Jun. 24, 2003, etc.).

Meanwhile, where false purchase and sale orders, high-priced purchase and sale orders, etc. are repeated for the purpose of manipulation of stocks, this is a single and continuous crime under Article 188-4 of the former Securities and Exchange Act (repealed by Article 2 subparag. 1 of the Addenda of the Financial Investment Services and Capital Markets Act, Act No. 8635, Aug. 3, 2007; hereinafter “former Securities and Exchange Act”) which prohibits unfair trading, which provides for the prohibition of market price manipulation. The purpose of this crime lies in the social legal interest of securing fairness and smooth circulation of securities trading. The legal interest of each of the above crimes is deemed to have been identical to the legal interest of each of the above crimes, in light of the fact that it is not a direct protection of the law, and thus, it is not necessary to determine whether there is a misunderstanding of the market price and the possibility of unfair trading under Article 188-4 of the former Securities and Exchange Act, and thus, it is established that there is a possibility that there is a false understanding of the market price and other trading purposes.

In light of the above legal principles and records, the court below's finding facts as stated in its judgment, and held that each transaction by the defendant 1 and 2 constitutes a comprehensive crime of violation of the prohibition of unfair trade under Article 188-4 of the former Securities and Exchange Act by combining the centralized transaction period and each issue, and that the defendant 3 aided and abetted such violation. There is no error in the misapprehension of legal principles as to the credibility of prosecution confession or unfair trade under Article 188-4 of the Securities and Exchange Act.

2. As to Defendant 3’s other grounds of appeal

As for the accessories of the crime of violating the prohibition of unfair trade practices under Article 188-4 of the former Securities and Exchange Act, the fine may be imposed concurrently pursuant to Article 214 (1) of the former Securities and Exchange Act, as well as the principal offender, and the punishment of the principal offender shall be mitigated pursuant to Article 32 (2) of the Criminal Act.

In addition, the term "profit from a violation" under the proviso of Article 207-2 (1) and (2) of the former Securities and Exchange Act refers to a concept contrary to the "amount of loss" as stipulated together, and the difference between the profit from the violation in question and the total income from the transaction in question, that is, the difference between the profit from the violation in question and the total expenses for the transaction in question. Therefore, the profit from the actual transaction in question refers to the net trading profit which remains after deducting the transaction expenses, such as purchase commission, sale commission, and securities transaction tax (including special tax for rural development in the case of the Stock Exchange) from the total sales amount of the securities transaction in question, in addition to the total purchase amount (see Supreme Court Decision 2004Do1465 delivered on May 28, 2004).

In light of the above legal principles and records, the court below's determination of Defendant 3 as an aiding and abetting of unfair trade practices by applying Article 214 (1) and (2) of the former Securities and Exchange Act to Defendant 1 and 2, and to determine fine amount of KRW 300 million within the maximum amount of aiding and abetting, concurrent offenders, and discretionary mitigation by applying Article 214 (1) and (2) of the former Securities and Exchange Act shall be justified in accordance with the above legal principles. In so doing, there is no error of law such as misunderstanding of facts against the rules of evidence, imposition of fines against aiding

3. Conclusion

Therefore, all appeals are dismissed, and as to Defendant 1, part of the detention days after the appeal shall be included in the imprisonment with prison labor as indicated in the judgment. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Young-ran (Presiding Justice)