자본시장과금융투자업에관한법률위반
The judgment of the court below is reversed.
Defendant
A Imprisonment with prison labor for six months and fines for 150,000,000 won, and Defendant B Co., Ltd. shall be punished.
1. Summary of grounds for appeal;
A. Defendants 1) 1: (a) around August 21, 2015, Defendant A sold all of the F stocks of Defendant A Co., Ltd., the entire amount constitutes the termination date of the instant market price manipulation; (b) thus, deeming the completion date of the instant market price manipulation as August 17, 2015 and calculating the amount of unjust enrichment based on the foregoing is unreasonable.
B) In the case of the K’s account under the name of Defendant A’s spouse, K, the nominal owner, falls under the calculation entity of the pertinent account, and it is unreasonable to include the entire profit related to the pertinent account in the amount of unjust enrichment. C) In addition to Defendant A’s market price manipulation during the instant market price manipulation period, there were external factors that make it possible to increase the stock price of Defendant F, and thus, it is unreasonable to calculate the amount of unjust enrichment on the ground that the share price increase in F, which was in the instant market price increase,
2) The sentence imposed by the lower court on the sentence of unfair sentencing (Defendant A: 2 years of suspended sentence and fine of KRW 400,000,000,000,000 for a period of 6 months of imprisonment, additional collection of KRW 29,000,000,000 for a fine of KRW 423,249,018) is too unreasonable. (B) The sentence imposed by the lower court on Defendant A (the imprisonment of KRW 2 years and fine of KRW 40,000,000 for a period of 6 months) is too unreasonable and unfair. (2) On April 18, 2017, the former Financial Investment Services and Capital Markets Act (amended by Act No. 14827, Apr. 18, 2017; hereinafter “Capital Markets Act”).
The term "profit from a violation" in the proviso of Article 443 (1) and paragraph (2) of the same Article means the profit from a transaction related to the violation, which is recognized as having causation with the risk of the violation.
In ordinary cases, the causal relationship may be calculated by calculating the gross income from a transaction related to the violation after deducting the total expenses incurred in the transaction.