(영문) 서울고등법원 2018.11.28 2018노115 | 리걸엔진

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(영문) 서울고등법원 2018.11.28 2018노115

자본시장과금융투자업에관한법률위반

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The judgment of the court below (including the portion not guilty) shall be reversed.

Defendant

A Imprisonment with prison labor of two years and fine of 500,000,000 won, Defendant.

Reasons

1. The lower court acquitted the Defendants on the part of the facts charged of the instant case on the ground that the Defendants could not calculate profits derived from market price manipulation.

As the prosecutor did not appeal the part not guilty of the above reasons and this part was out of the object of attack and defense between the parties, the conclusion of the judgment of the court below is followed.

A. Defendants 1 and misunderstanding of the legal principles) were engaged in normal trading of shares by analyzing the stock market, thereby purchasing shares at the time when the share price was lower than the original value, and repeatedly selling shares by repeating the time when the said shares were found to be the original value.

Therefore, the Defendants’ act does not constitute an artificial act of operating prices prohibited under the Financial Investment Services and Capital Markets Act.

B) Even if the Defendants’ investment act is deemed an act of market price manipulation, this case constitutes a case where it is difficult to calculate the unjust profit that is recognized as a causal relation with the Defendants’ act of market price manipulation due to the change factors intentionally caused by a third party unrelated to the offense.

Defendant

C The court below asserts that the amount of the fine of the court below is unfairly calculated, since the court below included the amount of unjust profits that occurred at the time of the enforcement of the former Financial Investment Services and Capital Markets Act, concurrently with a fine.

However, in the instant case, the judgment of the lower court on the Defendants’ assertion of misunderstanding of the legal doctrine regarding the amount of unjust benefits should be settled, and as seen below, the appellate court deemed that the amount of unjust benefits by the Defendants is difficult to calculate is different from the lower court’s judgment, and thus, it is not separately determined as to Defendant C

C) In the case of Defendant E and F, the requirement of a fine.

유사 판례

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-서울고등법원 2017.02.09 2016노2318

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