1. According to the reasoning of the judgment below, the court below found Defendant 1 and Defendant 2 and Defendant 3 (hereinafter “Defendant 1, etc.”) to have acquired unjust enrichment on the part of Defendant 2 (hereinafter “Defendant Company”) which did not constitute an aggregate of KRW 5,364,279,517 (i.e., the sum of realizing profit by account, KRW 2,170,320,986, and KRW 3,193,988,98, and KRW 9,000,00,000,000,000,0000 shares issued by Defendant 1 and Co-Defendant 2 (hereinafter “Defendant Company”) to have acquired unjust enrichment on the part of Defendant 1 and Co-Defendant 2 (hereinafter “Defendant Company”) to have acquired unjust enrichment on the part of Defendant 1 and Co-Defendant 2, who did not have been aware of the fact that they had acquired the remaining amount of their own shares in accordance with the above facts charged.

2. Examining the relevant legal principles and records, the court below is just in holding that unrealized profits arising from the act of acquiring treasury stocks of this case do not constitute profits arising from transactions related to the crime of this case on the grounds that the court below did not err by misapprehending the legal principles in calculating the profits arising from stock manipulation, contrary to what is alleged in the grounds of appeal.

3. Meanwhile, where a representative, etc. of a corporation committed a violation under Article 443 of the former Financial Investment Services and Capital Markets Act (amended by Act No. 11845, May 28, 2013) with respect to the business of the corporation as an institution, the profits earned by the corporation from such violation shall also be included in the profits earned by the corporation from such violation as the representative, etc. of the corporation (see Supreme Court Decision 2011Do12041, Dec. 22, 2011).

Therefore, the court below erred in holding that the profits from the above treasury shares owned by the defendant company from the defendant 1 and the remaining accomplices do not constitute the profits earned from the crime of this case on the ground that they cannot be deemed as belonging to the whole property of all the accomplices including the defendant 1. However, inasmuch as the court below acquitted the defendant 1 and the remaining accomplices on the ground that the remaining facts of the court below are found not guilty, the above error of the court below did not affect the conclusion of the judgment.

4. Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jo Hee-de (Presiding Justice)