[1] Specific degree of the facts charged

[2] The number of crimes committed in a case where a person repeatedly committed an act of conspiracy and disguised trading, an act of high-priced purchase order and an act of false purchase order, etc. over several occasions for the purpose of putting stocks in bulk and operating the market price (=general crime)

[3] Requirements and methods for the establishment of a public contest relationship

[4] The meaning of "the purpose of causing another person to make a wrong judgment," which is a subjective element for establishing a crime of violation of Article 188-4 (1) of the former Securities and Exchange Act, is "the purpose of causing another person to make a false judgment"

[5] The meaning of "the purpose of inducing the trading transaction" as stipulated in Article 188-4 (2) of the former Securities and Exchange Act, and the meaning of "the trading that misleads the trading of securities or changes the market price" as stated in subparagraph 1 of the same Article, and the criteria for determining whether such trading constitutes "the trading that misleads the trading of securities or changes the market price"

[1] The purport of allowing the court to specify the facts charged by specifying the time, place, and method of the crime in the indictment is to limit the object of the trial against the court and to facilitate the exercise of the right of defense by specifying the scope of defense against the defendant. Thus, the facts charged is sufficient if the facts constituting the crime are stated to the extent that it can be distinguished from other facts by comprehensively taking into account these elements, and even if the date, time, place, method, etc. of the crime are not indicated specifically in the indictment, it does not go against the purport of the law allowing the specification of the facts charged, and if it is inevitable to indicate the general facts in light of the nature of the crime charged, the indictment cannot be deemed unlawful because the contents of the indictment are not specified, and in particular, in the case of a single comprehensive crime, even if it is not specified specifically as to each act constituting the part of the crime, the whole time and termination period of the crime, method of the crime, the victim or counterpart,

[2] In a case where a series of stocks are sold in large quantity to operate the market price, and a series of unfair trade practices such as collusion and disguised trade under Article 188-4 (1) 1 through 3 of the former Securities and Exchange Act (amended by Act No. 6695 of Apr. 27, 2002) and an act of high-priced purchase orders and an act of buying orders under Article 188-4 (2) 1 of the former Securities and Exchange Act are repeated, each of the above acts constitutes a crime of violation of prohibition of unfair trade under Article 207-2 subparagraph 2 and Article 188-4 of the same Act, including all of the above acts.

[3] In relation to co-offenders who are jointly engaged in a crime, the conspiracy does not require any legal punishment, but is only a combination of two or more persons to jointly process a crime and realize the crime. Even if there was no procedure of conspiracy, if there was a combination of intent to do so in order or impliedly, the conspiracy relation is established between several persons, and even if there was no direct participation in the act of conspiracy, even if there was a person who did not directly participate in the act of conspiracy, he/she is held liable for the act of another co-principal as a co-principal. Such conspiracy may be acknowledged in accordance with the circumstantial facts and empirical rules, even if there was no direct evidence.

[4] In order to establish a crime of violation of Article 188-4 (1) of the former Securities and Exchange Act (amended by Act No. 6695 of Apr. 27, 2002), there should be "the purpose of causing a misunderstanding or causing another person to make a false judgment," in addition to the facts of the conspiracy or the fictitious sale." This purpose is not a matter of whether the other purpose exists or the purpose is to coexist with the other purpose, but it is sufficient that the degree of awareness of the purpose is not a positive or conclusive recognition, but a misunderstanding of the investor is sufficient, and whether the misunderstanding of the investor was actually caused, or whether the other person was damaged.

[5] The term "the purpose of inducing a trade transaction" under Article 188-4 (2) of the former Securities and Exchange Act (amended by Act No. 6695 of Apr. 27, 2002) is to mislead investors that the market price is formed by the natural demand and supply principle in the securities market, thereby inducing them to trade securities. The term "the trading that misleads investors as if the market price was formed by the natural demand and supply principle in the securities market or changes the market price" under subparagraph 1 refers to the trading that is likely to cause an artificial change of the market price and trading volume to be formed in the free competition market due to normal demand and supply as other factors not attributable to the market price. The issue of whether it falls under this shall be determined by comprehensively considering the nature and total number of securities issued, the motive and type of the transaction, the trend of the market price in the securities market at the time, the situation of the transaction at the time, etc.

[1] Article 254 (4) of the Criminal Procedure Act / [2] Articles 188-4 and 207-2 subparagraph 2 of the former Securities and Exchange Act (amended by Act No. 6695 of April 27, 2002) / [4] Article 188-4 (1) of the former Securities and Exchange Act (amended by Act No. 6695 of April 27, 2002) / [5] Article 188-4 (2) of the former Securities and Exchange Act (amended by Act No. 6695 of April 27, 2002)

[1] Supreme Court Decision 99Do2934 delivered on November 12, 199 (Gong1999Ha, 2559) Supreme Court Decision 2002Do2939 Delivered on October 11, 2002 (Gong2002Ha, 2778) Supreme Court Decision 2004Do6646 Delivered on January 14, 2005 (Gong2005Sang, 347) / [2] Supreme Court Decision 2002Do1256 Delivered on June 14, 2002 (Gong202Ha, 1741), Supreme Court Decision 2002Do1696 Delivered on July 22, 202 (Gong202Ha, 202Ha, 2010) / [368Do2084 delivered on June 26, 200]

Defendant

Defendant

Law Firm Manwoo, Attorneys Kim Yong-ju et al.

Seoul Central District Court Decision 2003No5526 delivered on February 11, 2004

The appeal is dismissed.

1. Regarding ground of appeal No. 1

The purport of allowing the court to specify the facts charged by specifying the time, place, and method of a crime in the indictment is to limit the scope of defense against the defendant and to facilitate the exercise of defense by specifying the scope of defense. Thus, the facts charged is sufficient if the facts constituting the crime are stated to the extent that it can be distinguished from other facts by comprehensively taking account of these factors, and even if the date, time, place, method, etc. of the crime are not indicated in the indictment, it does not go against the purport of the Act requiring the specification of the facts charged, and if it is inevitable in light of the nature of the crime charged, the indictment cannot be deemed unlawful because the contents of the indictment are not specified. In particular, even if it is not specified in detail for each act constituting part of the daily crime, the whole period and method of the crime, the victim or counterpart, the frequency of the crime, and the total amount of damage, etc., of Article 20-2 of the Securities and Exchange Act (see Supreme Court Decisions 9Do2934, Nov. 12, 199; 200Do46164, Feb. 16, 2009

In light of the above legal principles and records, the facts charged in violation of the Securities and Exchange Act regarding unfair trade practices, such as price manipulation, stipulate the time and termination period of the entire crime, method of crime, frequency of crime, number of transaction, etc., and the defendant, who was the subject of transaction, was well aware of such details of transaction. Thus, even if the relevant transaction date, number of transaction days, etc. are not specified daily by the type of unfair trade practice, the object of the trial is unclear or the defendant cannot be deemed to cause difficulties to defend. Thus, we cannot accept the argument in the ground of appeal that the court below erred by violating the law regarding the specification of the facts charged.

2. Regarding ground of appeal No. 2

In relation to co-offenders who are jointly engaged in a crime, the conspiracy does not require any legal punishment, but is only a combination of two or more persons to jointly process a crime and realize the crime. Even if there was no process of the whole conspiracy, if the combination of the doctors is made successively or implicitly through several persons, the conspiracy relationship is established, and even if there was no direct participation in the act of the conspiracy, even if there was no direct participation in the act of the conspiracy, the conspiracy is criminal liability as a co-principal for the act of the other co-principal. This conspiracy can be recognized by the circumstantial facts and empirical rules without direct evidence (see, e.g., Supreme Court Decisions 2002Do868, Jun. 28, 2002; 2003Do7112, Mar. 26, 2004).

In light of the records, it is erroneous for the court below to take the contents of the protocol of interrogation of the non-indicted as to the non-indicted in the police who was not admitted as evidence and make an expression as if the defendant and the non-indicted acknowledged the conspiracy relation between the defendant and the non-indicted. However, even if the above evidence were excluded, according to the remaining evidence established by the court below, the defendant's conspiracy with the non-indicted in collusion with the non-indicted and the fact-finding can be acknowledged. Thus, the court below's evidence preparation and fact-finding are acceptable. There is no

3. As to the third ground for appeal

In order to establish a crime of violation of Article 188-4 (1) of the Securities and Exchange Act, "the purpose of leading other persons to make a wrong judgment" as a subjective element, in addition to the facts of conspiracy and trading or disguised trading. This purpose is not to question whether the other purpose exists or any purpose is main, but it is sufficient to say that there is dolusence in its purpose without the need of active desire or conclusive recognition, and whether there was actual misunderstanding of investors or whether there was damage to other persons, etc. (see Supreme Court Decision 2001Do3567, Nov. 27, 2001). Further, "the purpose of inducing trading" as provided in Article 188-4 (2) of the Securities and Exchange Act is to make a false judgment, and it is 200Do3567, Nov. 27, 200). 200; 200Do35677, Jan. 27, 200, which is likely to cause changes in the market price of securities at the time of artificial manipulation.

The court below determined that the above facts charged are sufficient to prove the crime in light of the above legal principles. The court below's aforementioned evidence preparation, fact-finding and determination are justified, and there are no errors in the misapprehension of the rules of evidence or the misapprehension of the legal principles as to market price manipulation under the Securities and Exchange Act, as alleged in the grounds of appeal. The court below did not err in the misapprehension of the rules of evidence or the misapprehension of the legal principles as to market price manipulation under the Securities and Exchange Act.

4. As to the fourth ground for appeal

In light of the records, the court below's finding the defendant guilty of the crime of violation of the duty to report the status of stocks held in bulk by the employed evidence is just and acceptable, and there is no violation of the rules of evidence or misunderstanding of the legal principles as to Article 200-2 (1) of the Securities and Exchange Act.

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

Justices Kim Yong-dam (Presiding Justice)