[2] The case holding that the expenses, such as refund money, etc. to be paid to subscribers during the external subscription process for market price manipulation, cannot be deemed as trading expenses related to the sale and purchase of stocks, and it cannot be deemed as included in the expenses which were deducted from the profits accrued from market price manipulation due to actual trading

[3] The elements for the establishment of a conspiracy relationship with the co-principal

[4] Whether an intent and ability to repay the borrowed money can be deemed in a case where a sufficient security is provided to a third party with money borrowed from a third party (affirmative)

[5] The case holding that in a case where even if there was sufficient value of security at the time of receiving a loan, if it was offered as security with the well-known knowledge that the market price of the shares was manipulationd, the crime of fraud

[6] The applicable law in case where market price manipulation, which is a single comprehensive crime, is extending over before and after the enforcement of the Act

[2] The case holding that the expenses, such as refund money, etc. to be paid to the subscribers during the external subscription process for market price manipulation, cannot be deemed as trading expenses related to the sale and purchase of stocks, and cannot be deemed as included in the expenses which were deducted from the profits accrued from market price manipulation due to actual trading

[3] In relation to accomplices who are co-processed with more than two crimes, the conspiracy does not require any legal punishment, but is only a combination of two or more persons to jointly process and realize a certain crime. Although there was no process of conspiracy, if a combination of intent is formed in order or impliedly, among several persons, then the conspiracy relationship is established. As long as such conspiracy was made, even if there was no direct participation in the conduct, a person is held liable as co-principal for the other's act.

[4] If sufficient collateral is provided from a third party with money borrowed, it cannot be deemed that the third party had no intent and ability to repay the borrowed money, barring special circumstances.

[5] The case holding that in a case where even if there was sufficient value as security at the time of receiving a loan, if it was offered as security with the well-known knowledge that the market price was the stock, the crime of defraudation is recognized

[6] In a case where market price manipulation, which is a single comprehensive crime, was conducted before and after the enforcement of the Act on the Amendment of the Securities and Exchange, when the profit or loss avoided by the crime after the enforcement of the Securities and Exchange Act meets the elements of Article 207-2 (2) of the said Act, the punishment may be imposed by applying Article 207-2 (2) of the said Act. However, if not, it should be punished by applying Article 207-2 of the former Securities and Exchange Act under the principle

A. As to the first ground for appeal

The proviso of Article 207-2 (1) of the Securities and Exchange Act (hereinafter referred to as the "Act") provides that when the amount equivalent to three times the profit earned or the loss avoided by a violation of Article 188-4 (2) 1 of the Act, which prohibits the actual transaction, exceeds 20,000 won, the person shall be punished by a fine not exceeding three times the profit or the loss amount, and Article 207-2 (2) of the Act provides an aggravated punishment on the basis of the profit accrued or the loss avoided by the violation. The "loss accrued from the violation" is the concept opposite to the "loss amount stipulated together," which is the difference between the profit accrued from the violation and the total profit accrued from the transaction in question, that is, the difference between the total profit accrued from the transaction in question and the total expenses incurred from the transaction in question, and therefore, the profit accrued from the actual transaction in this case refers to the purchase commission for the transaction in question, the sale commission for the transaction, the securities transaction tax (including the special tax for rural development).

원심판결 이유에 의하면, 원심은 제1심이 채택한 증거들을 종합하여, 공소외 1 주식회사(종전 상호는 ' 상호생략'인데, 2002. 9.경 상호가 바뀌었다.)가 2000. 2. 14. 부도 처리되고 같은 해 8. 21. 화의인가를 받은 사실, 공소외 1 주식회사는 그 후 경영정상화를 위하여 2001. 10. 26.경 주식회사 크레디온(이하 '크레디온'이라 한다)과 사이에 크레디온이 공소외 1 주식회사의 유상증자에 참여하는 것을 주요 내용으로 하는 경영정상화계약을 체결하였으나, 자산실사 결과 필요한 자금투입규모가 당초 예상했던 180억 원보다 훨씬 많은 250억 원에 이르게 되자, 크레디온은 공소외 1 주식회사에 대한 구조조정 작업을 중단한 채 이를 양도할 대상을 물색하였는데, 공소외 2와 피고인 1은 2001. 11.경 그 정보를 입수하고서 공소외 1 주식회사를 인수하여 이를 대상으로 집중적인 주가조작을 통해 시세차익을 얻기로 공모하고 2002. 2. 22. 자본금 70억 원을 사채업자인 반재봉으로부터 빌려 가장납입의 방법으로 공소외 3 주식회사를 설립하였고, 크레디온과 협의과정을 거쳐 2002. 3. 20. 그 사업을 양수받은 사실, 그에 따라 공소외 1 주식회사는 자본감소, 액면분할 절차를 거쳐 2002. 4. 25. 보통주 45,454,550주(액면분할 후 기준, 이하 같다), 발행가 550원, 증자금액 250억 원, 유상증자일 2002. 6. 3., 신주권교부일 2002. 6. 24.로 하는 제3자 배정 방식의 유상증자를 결의하였는데, 공소외 3 주식회사는 총 44,454,550주에 관하여 유상증자 절차에 참여함으로써 3개월 및 1년 보호예수분을 제외한 2,172만 주를 교부받기로 하여 경영권(지분비율 94.19%)을 확보하게 되었고, 공소외 1 주식회사는 위 유상증자로 납입 받은 250억 원 등으로 화의채무 263억 원을 변제하여 2002. 8. 7. 관리 종목에서 해제되고 경영이 정상화된 사실, 한편, 피고인 1 등은 위 유상증자일보다 훨씬 앞선 시점인 2002. 2.에서 5.경까지 사이에 이미 장외청약자인 김성주 등에게 1년 보호예수분을 제외한 3,082만 주의 신주 중 2,002만 주를 주당 1,000원 내지 1,200원에 선매도하는 방식으로 총 224억 원의 공소외 1 주식회사 신주인수자금을 조달함으로써, 장외청약 모집가와 신주인수가의 차이를 이용하여 1년 보호예수분을 제외하고도 1,080만 주를 발행차익으로 취득하였고, 나아가 투자자들에게 그 청약주식을 교부할 때가 되자 현금보관증을 건네주고 주권 중 일부(578만 주)만을 교부함으로써, 결국 위 발행차익에 해당하는 주식과 미교부 주식 합계 2,504만 주를 이용하여 이 사건 시세조종을 한 사실, 또한, 2002. 2. 15.부터 2002. 4. 23.까지 및 2002. 5. 21.부터 2002. 10. 9.까지의 두 기간 중의 시세조종이 동일한 시세조종세력에 의하여 이루어졌고, 그 각 기간의 시세조종행위가 인위적인 가격조종을 통한 매매차익의 획득이라는 동일한 목적을 위해 이루어졌으며, 전반기 시세조종에 동원되었던 계좌가 후반기 시세조종에도 계속 이용되었고, 전반기 중에 매수한 주식을 후반기 중에 매도하는 등 같은 주식의 매매가 두 기간에 걸쳐 연속적으로 이루어진 사실 등을 각 인정한 다음, 피고인 1 등은 처음부터 구조조정과 관련한 제3자 배정 방식의 신주 발행 및 청약자 모집을 의미하는 '발행시장' 부분과 구조조정 완료 후 확보한 신주 및 이를 담보로 취득한 자금 등을 이용하여 주가를 조작하는 것을 의미하는 '유통시장' 부분을 연계시켜 시세조종하기로 계획하였고, 그 전체적인 계획하에 구주 매집과 신주 발행 단계를 포함한 이 사건 시세조종을 하였다고 봄이 상당하므로, 신주 발행이 주가조작을 위한 수단으로 이용되었다고 볼 수 있고, 그렇다면 시세조종을 통하여 얻은 이익을 계산함에 있어 발행시장을 통하여 입고된 주식의 평균 취득단가를 신주 발행가인 550원으로 보는 것이 합리적이라고 판단하고, 이를 토대로 피고인 등이 공소외 1 주식회사 주식에 대한 시세조종을 통해 얻은 순이익을 15,020,121,751원으로 판단하였다.

In light of the above legal principles and the records, the above fact-finding and judgment of the court below are justified, and there is no error in the misapprehension of legal principles as alleged in the grounds of appeal.

B. Regarding ground of appeal No. 2

The term "cost that is deducted from the profit accrued from the actual trading" means trading cost that is related to the sale and purchase of shares, such as purchase commission, sales commission, and securities transaction tax (in the case of the Stock Exchange, including the special tax for rural development) related to the actual trading (see Supreme Court Decisions 2002Do1256, Jun. 14, 2002; 2001Do606, Dec. 12, 2003, etc.).

However, Defendant 1, etc.’s payment of subscription money to the subscribers during the external subscription process cannot be deemed as trading expenses related to the sale and purchase of stocks. Thus, it cannot be deemed that the expenses are deducted from the profits accrued from the actual transaction due to the price manipulation. Therefore, even if the lower court did not deliberate on this, it cannot be deemed that the lower court violated the rules of evidence.

2. As to Defendant 2

According to the records, since it is apparent that Defendant 2 was unable to submit only unfair sentencing to the judgment of the court of first instance as the grounds for appeal, it cannot be deemed as the grounds for appeal against the judgment of the court of first instance which accepted the claim, reversed the judgment of the court of first instance, and rendered a minor punishment, on the grounds of violation of the rules of evidence, misapprehension of legal principles, lack of reasons or inconsistency in reasoning, etc. as alleged in the grounds for appeal, and examining the evidence adopted by the court of first instance as cited by the court below in light of the records, the fact-finding and judgment of the court

3. As to Defendant 3

A. As to the first ground for appeal

In relation to accomplices who are co-processed with two or more persons in a crime, the conspiracy does not require any legal punishment, but is only a combination of two or more persons to jointly process a crime and realize the crime. Even if there was no process of conspiracy, if a combination of doctors is formed by consecutive or impliedly and through the agreement among several persons, the conspiracy is established, and even those who did not directly participate in the act of conspiracy are held liable for the other co-principal's act (see, e.g., Supreme Court Decisions 2001Do4947, Jul. 26, 2002; 2002Do6103, Jan. 24, 2003).

According to the reasoning of the judgment below, in full view of the evidence adopted by the court of first instance, the court below held that Defendant 3, in collusion with Defendant 1, Nonindicted 4, etc. to manipulate the share price of the non-indicted 1 corporation, and Defendant 3 made an intensive manipulation by taking charge of the distribution part, and Defendant 1, etc. also made the role of raising funds for the stock price manipulation to the non-indicted 1 corporation at the same time with Defendant 1, etc., so even if Defendant 3 did not directly make a false statement about the victim's gambling and the defendant 1's participation in the share price increase as to the non-indicted 1 corporation's share price prospects and the participation in capital increase with the non-indicted 1 corporation as a security, the above financing should be deemed as having an implied intent with Defendant 3 and the non-indicted 1, etc., and thus, Defendant 3 should also be held liable with the defendant 1, etc. under the legal principles of joint principal and related evidence. In light of the above legal principles and records, the court below's judgment is justified as alleged in the grounds of appeal.

B. Regarding ground of appeal No. 2

In a case where a person provided sufficient security with a loan from another person, such loan cannot be deemed to have had no intent and ability to repay the loan, barring special circumstances (see Supreme Court Decision 84Do231, Mar. 27, 1984).

However, according to the records, Defendant 3's share price was approximately KRW 2.5 billion at the market price at the time when it was offered as security to Hana Bank. However, the market price at the time of the above share price was not only due to the stock price manipulation by Defendant 3, etc., but also due to Defendant 3's loan of KRW 1 billion from Han Bank on September 26, 2002 to KRW 2,00,000,000. However, in light of the fact that the price collected by the Bank was only KRW 567,355,194, and Defendant 3 knew that it was the stock price manipulation and concealed it, even if Defendant 3 was aware that it was about KRW 2.50 billion at the time of lending as security, it cannot be viewed that the above share price was partially 80 billion, which was offered as security, and there was no error in the misapprehension of legal principles as to the amount of the loan to Defendant 3 as security.

C. Regarding ground of appeal No. 3

According to the records, it is clear that Defendant 3 was unable to submit only unfair sentencing grounds as to the violation of the Securities and Exchange Act among the judgment of the court of first instance. Thus, Defendant 3 cannot be deemed legitimate grounds of appeal on the ground of misunderstanding of legal principles as to the Securities and Exchange Act, such as the allegations in the grounds of appeal, as otherwise alleged in the grounds of appeal, and the fact-finding and decision of the court below on the profits accrued from stock price manipulation as seen earlier are just and acceptable, and there are no errors in the misapprehension of legal principles as to the Securities and Exchange Act

4. As to Defendant 4

A. As to grounds of appeal Nos. 1 and 2

According to the reasoning of the judgment below, the court below found Defendant 4 guilty of violating the Securities and Exchange Act of this case by integrating the evidence adopted by the court of first instance. In light of the records, the fact-finding and judgment of the court below are justified, and there is no violation of law of mistake of facts or violation of the rules of evidence as alleged in the grounds of appeal.

B. Ground of appeal No. 3

According to the records, among the judgment of the court of first instance, Defendant 4 was clearly in violation of the rules of evidence and unreasonable sentencing as to each of the violation of the Securities and Exchange Act. As such, Defendant 4 cannot be viewed as the grounds for appeal on the grounds of misapprehension of legal principles as to the Securities and Exchange Act, as alleged in the grounds for appeal, and as seen earlier, Defendant 1’s fact-finding and judgment on the profits accrued from stock price manipulation as alleged in the grounds for appeal are just and acceptable, and there is no error of law in the misapprehension of legal principles as to the Securities and Exchange Act

5. Ex officio determination

The proviso of Article 207-2 of the former Securities and Exchange Act (amended by Act No. 6695, Apr. 27, 2002; hereinafter referred to as the "former Act") provides that if the amount equivalent to three times the profit accrued or loss avoided by a violation exceeds 20,000 won, the amount equivalent to three times the profit accrued or loss avoided by the violation shall be punished. However, Article 207-2 (2) of the Act, effective from April 27, 2002, provides that the profit accrued or loss avoided by the violation shall be punished by a fine not exceeding three times the profit or loss avoided by the violation, and if the profit accrued or loss avoided by the crime after the enforcement of the Act reaches the elements of Article 207-2 (2) of the Act, and Article 207-2 (2) of the former Act shall be punished by a fine not exceeding five billion won.

However, according to the reasoning of the judgment below, the court below acknowledged that Defendant 1, Defendant 3, and Defendant 4 et al. acquired 617,401,50 won from the market price by means of manipulating the shares of the stock company between March 28, 2002 and May 23, 2002, and that Defendant 1, Defendant 2, Defendant 3, and Defendant 4 et al. acquired 15,020,121,751 won from the market price profits by manipulating the shares of the non-indicted 1 corporation between February 15, 202 and October 9 of the same year, and punished by applying Article 207-2 (2) 2 and 1 of the former Act.

However, according to the above legal principle, even if the defendant et al. was punished under Article 207-2 (2) of the Act only when the profit accrued or loss avoided due to stock price manipulation after April 27, 2002, which was the enforcement date of the Act, falls under the category of 500 million won or more, the court below did not separately consider the profit accrued or loss avoided due to stock price manipulation after the enforcement of the Act and punished by applying Article 207-2 (2) of the Act on the basis of the total profit accrued by the defendant et al. at the time of the completion of the market price manipulation based on the total profit accrued by the defendant et al. at the time of the completion of the market price manipulation. Thus, this constitutes a case where the court failed to complete the deliberation

6. Conclusion

Therefore, among the judgment below, the violation of the Securities and Exchange Act due to the stock price manipulation by Defendant 1, Defendant 3, and Defendant 4 and the violation of the Securities and Exchange Act due to the stock price manipulation by Nonindicted Co. 1, Defendant 1, Defendant 2, Defendant 3, and Defendant 4 cannot be maintained any further. Since each of the above crimes was sentenced to a single punishment in relation to the concurrent crimes under the former part of Article 37 of the Criminal Act with the remaining convictions by Defendant 1, Defendant 2, Defendant 3, and Defendant 4, the part of the judgment of the court below against Defendant 1, Defendant 2, Defendant 3, and Defendant 4 are all reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Zwon-won (Presiding Justice)