[1] In a case where a statutory penalty provides for both punishment of imprisonment and fine, whether the court may determine whether a fine may be imposed concurrently at the discretion (affirmative)

[2] The meaning of "profit accrued from a violation" under the proviso of Article 207-2 (1) and Article 207-2 (2) and Article 214 (2) of the former Securities and Exchange Act

[3] The case affirming the judgment below which acquitted the defendant on the charge of violating the former Securities and Exchange Act in case where the defendant committed an act of price manipulation, etc. of stocks using a securities account in the name of the holder of a title deed or another person's name where funds are mixed between the defendant and the holder

[1] In a case where the statutory penalty may be imposed concurrently with imprisonment and fine, the court may determine, in its discretion, whether a fine may be imposed concurrently on the psychological and final facts regardless of the applicable provisions of law or the prosecutor’s punishment stated in the indictment.

[2] The term "profit accrued from a violation" under the proviso of Article 207-2 (1) and Article 207-2 (2) and Article 214 (2) of the former Securities and Exchange Act (repealed by Article 2 of the Addenda to the Financial Investment Services and Capital Markets Act, Act No. 8635 of August 3, 2007) refers to the profit accrued from the violation.

[3] The case affirming the judgment below which acquitted the defendant of the violation of the former Securities and Exchange Act (repealed by Article 2 of the Addenda to the Financial Investment Services and Capital Markets Act, No. 8635 of Aug. 3, 2007) on the ground that where the defendant committed an act such as stock price manipulation, etc. using a securities account under the name of another person, only the funds of the holder of a title deed, the transaction profits accrued from such act are deemed to belong to the holder of a title deed, and it cannot be deemed to belong to the defendant, and where the defendant and the holder of a title deed committed an act such as stock price manipulation, etc. using a securities account under the name of another person in which the funds are mixed

[1] Articles 254 (3) 4 and 302 of the Criminal Procedure Act / [2] Article 188-4 (see current Article 176 of the Financial Investment Services and Capital Markets Act), Article 207-2 (1) (proviso), Article 207-2 (2) (see current Article 443 (1) and (2) of the Financial Investment Services and Capital Markets Act), Article 214 (2) (see current Article 447 (2) of the Financial Investment Services and Capital Markets Act) of the former Securities and Exchange Act (Amended by Act No. 8635, Aug. 3, 2007; Article 2 of the Addenda to the Financial Investment Services and Capital Markets Act; see current Article 188-4 (1) 3 and (2) 1 (see current Article 176 of the Financial Investment Services and Capital Markets Act); Article 214 (2) (see current Article 47 (2) of the Financial Investment Services and Capital Markets Act; Article 47 (2) (2) 4) 4) of the former Securities and Capital Markets Act

[1] Supreme Court Decision 78Do1890 Decided October 10, 1978 (Gong1979, 11491) Supreme Court Decision 83Do1789 Decided April 24, 1984 (Gong1984, 945) Supreme Court Decision 2000Do4267 Decided December 22, 2000, Supreme Court Decision 2009Do14993 Decided April 29, 201 / [2] Supreme Court Decision 2004Do491 Decided May 12, 2006, Supreme Court Decision 2007Do6336 Decided November 15, 2007

Defendant

Defendant and Prosecutor

Law Firm Jeong, Attorney Lee Young-soo

Seoul High Court Decision 2009No2111 decided May 28, 2010

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

In a case where the statutory penalty provides for concurrent punishment of imprisonment with prison labor and fine, the court may determine, at its discretion, whether to concurrently impose a fine on the psychological and final facts regardless of the existence of the applicable provisions of law stated in the indictment or the prosecutor’s punishment (see, e.g., Supreme Court Decisions 2000Do4267, Dec. 22, 2000; 2009Do14993, Apr. 29, 2010). The lower court, which was promulgated by Act No. 8635, Aug. 3, 2007 and promulgated by Act No. 8635, Feb. 4, 2009; hereinafter the same shall apply), may not be deemed to violate the principle of no punishment.

Therefore, the Defendant’s ground of appeal cannot be accepted on a different premise.

2. As to the Prosecutor’s Grounds of Appeal

The term "profit from a violation" under the proviso of Article 207-2 (1) and Articles 207-2 (2) and 214 (2) of the former Securities and Exchange Act refers to the profit earned by the violator (see Supreme Court Decision 2007Do6336, Nov. 15, 2007). In a case where multiple persons jointly commit an unfair transaction such as manipulation, the profit from the crime refers to the profit acquired by the whole accomplice who has participated in the crime, and it does not refer to the profit acquired by each criminal who has participated in the crime (see Supreme Court Decision 2005Do2710, Aug. 16, 2005).

According to the reasoning of the judgment below, the court below found the defendant's use of the securities account in the name of the non-indicted 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, and 11 as stated in the judgment when he committed a violation of the manipulation of this case. However, in full view of the circumstances in the judgment, the transaction profit from the securities account was deemed to belong to the above nominal owner, and cannot be deemed to belong to the defendant. Furthermore, although the defendant received the securities account from the non-indicted 12 and 13 as stated in the judgment of the court below and used it as the act of manipulation of this case, the above securities account was mixed with the funds of the defendant and the above nominal owner, and the defendant operated the above funds together without any special distinction. The court below found the defendant not guilty of the profits from the above mixed account of the non-indicted 36, 47, 57, 57, and 54, and 57, etc. of the securities market manipulation of this case.

In light of the above legal principles and records, the above fact-finding and judgment of the court below are just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of the legal principles as to "profit accrued from a violation" under Articles 207-2 and 214 of the former Securities and Exchange Act.

3. Conclusion

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

Justices Kim Nung-hwan (Presiding Justice)