(a) A prosecutor;

(1) misunderstanding of facts and misunderstanding of legal principles (not guilty part)

As to the violation of the Financial Investment Services and Capital Markets Act due to the manipulation of market prices among the facts charged in the instant case, if the Defendant comprehensively evaluates the act of purchasing high-priced stocks, purchasing permitted stocks, and selling orders by Si/Gun/Ku during the pertinent period, it can be deemed as the order of manipulation. The Defendant erred by misapprehending the legal principles as to the manipulation of market prices and by misunderstanding the Defendant, although the first instance court found the Defendant guilty of this part of the facts charged, it is erroneous in the misapprehension of the legal principles as to the manipulation of market prices, based on the following: (a) there is no collusion or most trade among the Defendant’s total purchase amount of stocks cited by the first instance court; (b) there are many cases where the call price increase is low; (c) there are many cases due to the Defendant’s high-priced purchase order; and (d) there are no measures such as notification of wire by the Korea Exchange; and (d) there is no error in the misapprehension of the legal principles as to the manipulation of market prices.

(2) Unreasonable sentencing

The sentencing of the first instance court (the sentencing of a fine of 5 million won) against the accused is too unhued and unfair.

B. Defendant

(1) misunderstanding of facts and misunderstanding of legal principles

With respect to the violation of the Financial Investment Services and Capital Markets Act due to the violation of the duty to report stocks held in bulk among the facts charged in the instant case, there was no information exchange between the Defendant and the Dong-si E on the degree of holding of each of the stocks, and there was no submission of data on the quantity of each stocks held, and this part of the evidence is insufficient. However, the first instance court determined that the Defendant and E were only aware of the fact that they hold 5% or more of the total amount of E's possession, and that the Defendant would hold 5% or more of the total amount of E's possession, and found the Defendant guilty of this part of the charges.

(2) Unreasonable sentencing

The sentencing of the first instance court on the accused is too vague and unfair.

2. Judgment on the prosecutor's misconception of facts and misapprehension of legal principles

(1) As to the violation of the Financial Investment Services and Capital Markets Act due to the manipulation of market prices among the facts charged in the instant case, first of all, the defendant acknowledged the fact that the defendant paid each purchase order of the instant shares as stated in the attached list of crimes in the judgment of the court of first instance, and there was a statement at the prosecutor's office to the effect that such purchase or purchase order of the instant shares is recognized as the act of manipulation of market prices, and next, there was an analysis result in the analysis that the Defendant's purchase order of the shares can be evaluated as the order of manipulation of market prices, and a statement at G investigation agency and the court of

(2) First, we examine the defendant's statement to the effect of confession at the prosecutor's office.

(A) The credibility of a confession made by a defendant in the prosecution cannot be said to be doubtful solely on the grounds that the confession is different from the court statement or that it is excessively unfavorable to the defendant. In determining the credibility of a confession, the credibility of a confession shall be determined by taking into account the following: (a) whether the content of the confession statement itself has objectively rationality; (b) the motive or reason behind the confession; (c) what is the motive or reason for the confession; and (d) what is the circumstance leading up to the confession, and whether there is any conflict or inconsistency with the confession among the circumstantial evidence other than the confession, and whether there is a situation where there is a rational doubt in the motive or process of the confession (see, e.g., Supreme Court Decision 2009Do1151, Jul. 22, 2010).

(B) As to the instant case, although the Defendant made a statement to the effect that he had made a confession at the prosecution’s stage, the following circumstances acknowledged by the record were denied when the Defendant was subject to investigation by the Financial Supervisory Service prior to Kim bidding. (i) After the Defendant made a confession at the prosecution, the Defendant’s appointment of defense counsel at the time of the request for detention warrant after this mold, and consistently denied the Defendant’s crime to the trial of the first instance court through the first instance court. (ii) The details of the Defendant’s statement to the effect that he was denied at the time of the initial investigation by the Financial Supervisory Service are not memory against the order for high-priced purchase (up to two years after the sale of the instant shares), but the Defendant did not consider that the price of the instant shares was no longer higher than that of the Defendant’s order purchase in light of the market situation at the time, or that the Defendant’s order purchase order was no more than that of the Defendant’s order purchase, and thus, it was concluded that the Defendant’s use of the order did not change its content.

(3) We examine the analysis data on the remaining objective transaction data except the Defendant’s statement and the analysis data of G investigator in charge.

(가) 구 증권거래법 제188조의4 제2항(현 자본시장과 금융투자업에 관한 법률 제176조 제2항 본문에 해당함) 소정의 '매매거래를 유인할 목적'이라 함은 인위적인 조작을 가하여 시세를 변동시키면 시도 투자자에게는 그 시세가 유가증권시장에시의 자연적인 수요·공급의 원칙에 의하여 형성된 것으로 오인하도록 하여 유가증권의 매매거래에 끌어들이려는 목적을 말하며, 그 제1호(현 자본시상과 금투자업에 관한 법률 제176조 제2항 제1호에 해당함) 소정의 '유가증권의 매매거래가 성황을 이루고 있는 듯이 잘못 알게 하거나 그 시세를 변동시키는 꺄매거래'라 함은 본래 성상적인 수요·공급에 따라 자유경쟁시장에서 형성될 시세 및 거래량을 시장요인에 의하지 아니한 다른 요인으로 인위적으로 변동시킬 가능성이 있는 거래를 말하는 것으로서, 위와 같은 목적은 다른 목적과의 공존 여부나 어느 목적이 주된 것인지는 문제되지 아니하고, 그 목적에 대한 인식의 정도는 적극적 의욕이나 확정적 인식임을 요하지 아니하고 미필적 인식이 있으면 족하며, 투자자의 오해를 실제로 유발하였는지 여부나 타인에게 손해가 발생하였는지 여부 등도 문제가 되지 아니하고, 위와 같은 목적과 시세조종행위에 해당되는지 여부는 당사자가 이를 자백하지 않더라도 그 유가증권의 성격과 발행된 유가증권의 총수, 매매거래의 동기와 태양(순차적 가격상승주문 또는 가장매매, 시장관여율의 정도, 지속적인 종가관여 등), 그 유가증권의 가격 및 기래량의 동향, 전후의 거래상황, 거래의 경제적 합리성 및 공정성 등의 간접사실을 종합적으로 고려하여 판단할 수 있다(대법원 2003. 12. 12. 선고 2001도606 판결, 대법원 2005. 11. 10. 선고 2003도6991 판결, 대법원 2010. 6. 24. 선고 2007도9051 판결 등 참조).

(B) On the basis of the facts found based on all the materials submitted by the first instance court and the facts charged, the following circumstances acknowledged by the lower court’s judgment regarding the purchase and sale of the instant shares are as follows: ① the investigative agency deemed to have participated in the market price of the instant shares from November 1, 2010 to December 28, 2010, the purchase and sale price of the instant shares increased by 52% per annum from 90 won; ② the Defendant’s purchase and sale price of the instant shares was 60 percent per day with the same order form as indicated in the facts charged; ② the Defendant’s purchase and sale price of the instant shares was 80 percent per annum and 60 percent per annum with the lower court’s total purchase and sale price of the instant shares; ② the Defendant’s purchase and sale price of the instant shares was 60 percent per day with the lower court’s order form, and the Defendant’s purchase and sale price of the instant shares was 60 percent per annum and 78 percent per day with the lower court’s order form.

(4) Therefore, this part of the facts charged is deemed not guilty on the ground that there is no proof of crime, and the first instance court, which makes the same conclusion, did not err in the misapprehension of legal principles as to market price manipulation or in the misconception of facts, and the prosecutor's assertion

3. Judgment on the mistake of facts and misapprehension of legal principles by the defendant

As to the violation of the Financial Investment Services and Capital Markets Act due to the violation of the duty to report stocks held in bulk among the facts charged in this case, the court of first instance recognized based on the evidence duly adopted and investigated by the court of first instance, and the following circumstances acknowledged by evidence, i.e., the defendant violated the duty to report stocks held in bulk on or around February 1, 2006, and there is a suspended execution period which became final and conclusive on or around February 1, 2008. As such, the defendant seems to have been well aware of the duty to report stocks held in bulk, ② the defendant stated that he was well aware of the duty to report stocks held in bulk, ② the defendant stated that he made a statement that he was 7.41% at the time of the investigation by the Financial Supervisory Service, ③ the highest ratio of the defendant's highest holding ratio is 4.9% and the defendant's highest holding ratio is 4.9%, and thus, the defendant could have sufficiently known that 5% or more can be combined with E's holding ratio, and thus, the defendant's assertion against the defendant can be accepted.

4. Determination on the assertion of unreasonable sentencing by prosecutors and defendants

With regard to each argument on unreasonable sentencing by prosecutors and defendants, the Montreal is also concerned.

In full view of the circumstances and motive leading up to the instant crime, the frequency and degree of the Defendant’s violation of duty to report, the degree of the Defendant’s criminal intent, the Defendant’s three-time criminal convictions, and other various historical factors that form the conditions for sentencing as indicated in the records, such as the Defendant’s age, character and conduct, environment, family relationship, and circumstances after the instant crime, the sentencing of the first instance court against the Defendant is too weak or unreasonable, and thus, the grounds for unfair sentencing of the prosecutor and the Defendant are rejected.

5. Conclusion

Thus, the appeal by the prosecutor and the defendant is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act since all of the appeals are without merit.

Judges Kim Gin-ju

Judges Suh Jeong-hee