[1] In a case where an executive officer or employee of a corporation sells a corporation's treasury stock with an undisclosed information under the former Securities and Exchange Act, whether he/she is punished for the corporation's business (affirmative)

[2] In a case where there is no difference in seriousness of punishment before and after the amendment of the law, whether the court can apply the former law when the act was committed without the amendment procedure (affirmative)

[1] The nonpublic information under Article 188-2 (1) 1 of the former Securities and Exchange Act (amended by Act No. 5736 of Feb. 1, 199) does not impose any restriction on whether it is for its own account or for another person's account, such as a disposition of treasury stocks to be attributed to the pertinent corporation's interest. If Article 215 of the same Act provides that the representative, agent, employee, or other worker of a corporation shall be punished when it commits a violation under Article 207-2 in relation to the corporation's business, if the representative, agent, employee, or other worker of the corporation sells the corporation's own stocks using nonpublic information, the officer, employee, or agent of the corporation shall be punished as a matter of course. Thus, it cannot be viewed that the amended Act added the corporation to the prohibition of using nonpublic information and made it subject to punishment for the violation of the corporation's prohibition.

[2] In a case where the facts constituting a crime acknowledged by the court are identical without difference in the facts charged, even if the prosecutor sought the application of the new law after the revision of the corporation at the time of trial, there is no concern that there would be substantial disadvantages to the defendant's exercise of his/her right to defense unless there is a difference in the gravity of punishment for the crime, and thus, the former

[1] Articles 188-2(1)1, 207-2 and 215 of the former Securities and Exchange Act (amended by Act No. 5736 of Feb. 1, 199) / [2] Article 1(1) of the Criminal Act, Articles 254 and 298 of the Criminal Procedure Act

[2] Supreme Court Decision 75Do363 delivered on November 23, 1976 (Gong1977, 9637) Supreme Court Decision 92Do954 delivered on June 23, 1992 (Gong1992, 2321)

Defendant 1 and one other

Defendants

Attorney Kim Jong-il

Seoul District Court Decision 2000No4662 delivered on July 12, 2000

All appeals are dismissed.

We examine the grounds of appeal.

After finding the facts charged based on the employed evidence, the court below rejected the defense counsel's assertion on the following grounds: the defendants' act was against the prohibition of internal securities trading using undisclosed information under Article 188-2 (1) 1 of the former Securities and Exchange Act (amended by Act No. 5736 of Feb. 1, 1999; hereinafter referred to as the "former Act"); while the amended provisions of the same Article stipulate "the corporation in question" as the subject of the prohibition of using undisclosed information is merely an addition to the corporation in question, which was not subject to punishment, which was not subject to punishment; and if the corporation's agent or officer uses undisclosed information as an agent or officer of the corporation in question, it cannot be deemed that it was punished after the amendment of the above Act.

The use of undisclosed information by officers and employees referred to in Article 188-2 (1) 1 of the former Act does not impose any restriction, regardless of whether it is done on their own account for the purpose of pursuing their own interest or for another person's interest, such as a disposition of treasury stocks that will accrue to the corporation. If Article 215 of the former Act provides that the representative, agent, employee, or other worker of the corporation shall be punished when the corporation commits an offense referred to in Article 207-2 with respect to the corporation's business, the officer, employee, or agent of the corporation shall be punished as a matter of course, even if the officer, employee, or agent of the corporation sells his own shares with respect to the corporation's business by using undisclosed information, so the amended Act does not change the provisions of the former Act on the ground that it added the corporation to the subject of prohibition of using undisclosed information and puts the corporation into the subject of punishment for the violation

Therefore, the fact-finding and judgment of the court below to the same purport are just and acceptable, and there is no violation of law by misunderstanding of facts or misunderstanding of legal principles as to internal self-transaction. The allegation in the grounds of appeal is just an independent opinion,

In addition, in a case where the facts constituting a crime acknowledged by the court are identical without any difference in the facts charged, even if the prosecutor tried to apply the new law after the revision of the corporation at the time of trial, there is no concern that there would be substantial disadvantages to the defendant's exercise of his/her right to defense unless there is any difference in the severity of punishment as to the crime, and thus, the former Act may be applied when the act is performed to be duly applied even without going through the amendment procedure of indictment (see, e.g., Supreme Court Decisions 75Do363, Nov. 23, 1976; 92Do954, Jun. 23, 1992). In this case where there is no change in the contents of Article 207-2 subparagraph 1 of the Securities and Exchange Act, which is a penal provision against the defendants, as well as the statutory punishment until trial, etc., the court below applied Article 188-2 (1) 1 of the former Act without going through the amendment procedure of indictment

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

Justices Lee Jae-in (Presiding Justice)