[1] The meaning of "profit derived from the violation" under Articles 207-2 and 214 of the former Securities and Exchange Act and the method of calculating the "profit from the violation"

[2] The meaning of "illegal profits from a violation of Article 207-2 of the former Securities and Exchange Act" subject to voluntary confiscation or collection under the former Act on Regulation and Punishment of Criminal Proceeds Concealment

[1] The term "profit from a violation" under Articles 207-2 and 214 of the former Securities and Exchange Act (repealed by the Financial Investment Services and Capital Markets Act, promulgated by Act No. 8635 of Aug. 3, 2007 and enforced Feb. 4, 2009) refers to the profit from a transaction related to the violation, which is recognized as a causal relationship with the risk of the violation. In ordinary cases, the causal relationship may be calculated by calculating the gross income from the transaction related to the violation after deducting the total expenses for the transaction from the gross income from the total income from the transaction related to the violation. However, if there are circumstances to deem that it is unreasonable to recognize the value of the profit from the specific violation by the above method, the burden of proof should be assessed in consideration of the motive, circumstance, mode, period, involvement of a third party, the situation of the securities exchange and other important factors that can have a significant impact on the share price.

[2] It is reasonable to view that the "illegal profits, which are property generated by the criminal act under Article 207-2 of the former Securities and Exchange Act (repealed by Article 2 of the Addenda of the Financial Investment Services and Capital Markets Act, repealed by Act No. 8635 of Aug. 3, 2007), are profits from a transaction related to a violation under Article 207-2 of the former Securities and Exchange Act and are recognized as a causal relationship with the risk caused by the violation, and even if the causal relationship is recognized, the court shall decide to confiscate or collect the illegal profits at its own discretion in consideration of various circumstances, even if the causal relationship is acknowledged.

[1] Article 207-2 (refer to Article 443 of the current Financial Investment Services and Capital Markets Act) and Article 214 (refer to Article 47 of the current Financial Investment Services and Capital Markets Act) of the former Securities and Exchange Act (amended by Act No. 8635 of Aug. 3, 2007 and enforced Feb. 4, 2009) / [2] Article 2 subparagraph 1 [Attachment Table 16] and Article 2 subparagraph 1 of the former Act on Regulation and Punishment of Criminal Proceeds Concealment (amended by Act No. 8719 of Dec. 21, 2007) (refer to Attached Table 10), Article 2 subparagraph 2 (a), Article 8, Article 10 of the former Securities and Exchange Act (amended by Act No. 8635 of Aug. 3, 2007) and Article 24 of the former Financial Investment Services and Capital Markets Act (amended by Act No. 2047 of Feb. 4, 2009)

[1] Supreme Court Decision 2004Do491 Decided May 12, 2006 / [1/2] Supreme Court Decision 2009Do1374 Decided July 9, 2009 (Gong2009Ha, 1374)

Defendant

Defendant and Prosecutor

Law Firm Barun et al.

Supreme Court Decision 2009Do1374 Decided July 9, 2009

Seoul High Court Decision 2009No1838 decided November 26, 2009

All appeals are dismissed.

The grounds of appeal by the defendant and the prosecutor are also examined.

Article 207-2 and Article 214 of the former Securities and Exchange Act (amended by Act No. 8635 of Aug. 3, 2007 and repealed by the Financial Investment Services and Capital Markets Act of Feb. 4, 2009; hereinafter the same shall apply) refers to profits arising from a trade related to such violation and the risk of such violation is recognized as a causal relationship. In ordinary cases, the gross income resulting from a trade related to such violation can be calculated by calculating the difference between the gross income resulting from the violation and the gross income resulting from such trade after deducting the total expenses for such trade. However, if it is deemed unreasonable to recognize the value of the profits resulting from such specific violation by the above method, it shall be deemed that the causal relationship between the legislative intent of Articles 207-2 and 214 of the former Securities and Exchange Act to eradicate fraudulent unfair trading and the liability principle under the criminal law is well-grounded in view of the motive, period, third party involvement in the violation, the securities market and the financial market at issue, as well as the total statutory burden of proof 2017.

According to the reasoning of the judgment below, even if the facts were to be found as above, that were all of the Defendant’s false interview from 070 to 70. The Defendant’s 20% of the total amount of 70% of the shares increase by 70% of the total amount of 70% of the shares issued by Nonindicted 1 corporation’s share price increase by 70% of the total amount of 70% of the shares issued by Nonindicted 1 corporation’s share price increase by 70. The lower court determined that the Defendant’s 20% of the shares increase by 70% of the shares issued by 00 and 70% of the total amount of 70% of the shares issued by 1 corporation’s share price increase by 0. The lower court determined that the Defendant’s 20% of the shares increase by 70% of the shares issued by 1 corporation’s share price increase by 70% of the shares issued by 200 or more of the Defendant’s shares increase by 207.

In light of the above legal principles and the records, such judgment of the court below is just and there is no violation of law such as misunderstanding of legal principles as to causation, amount of profit, collection of additional collection, etc. as otherwise alleged in the ground of appeal, and violation of binding force of the judgment remanded to the court below. In addition, the grounds for appeal by the defendant and the prosecutor as to the fact-finding of the court below are nothing more than the limit of free evaluation in violation of the logical rules and experience rules as to the evaluation of illegality or evidence which found the facts charged without any reasonable doubt or without any reasonable doubt. The grounds for appeal by the defendant and the prosecutor are nothing more than the purport of disputing the fact-finding of the court below without specifying the facts in violation of

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

Justices Min Il-young (Presiding Justice)