(영문) 서울남부지방법원 2014. 8. 22. 선고 2014노462 판결

The lower court, while it is difficult to readily conclude the time when the material non-indicted 1 Company (hereinafter referred to as “non-indicted 1 Company”) created material non-indicted 1 Company on November 25, 2010, as it was in fact made in the process of proposing the acquisition of shares by Non-indicted 1 Company (hereinafter referred to as “non-indicted 3 Company”) in the process of proposing the acquisition of shares by Non-indicted 1 Company, and thus, in fact, it was the premise for the Defendant’s acquisition of shares by Non-indicted 1 Company. However, from a reasonable investor’s perspective, if the value assessment of shares by Non-indicted 3 was completed on November 25, 2010, it should be deemed that the information, such as the Defendant’s acquisition of shares by Non-indicted 1 Company and the maximum possibility of shareholder change by Non-indicted 1 Company, was material non-indicted 1’s acquisition

The lower court determined that it is difficult to readily conclude that the Defendant acquired stocks using material nonpublic information when considering the process of acquiring the stocks of Nonindicted Company 1 and current status of holding the stocks of the Defendant and his family. However, it is difficult to readily conclude that the Defendant acquired stocks by using material nonpublic information, but the Defendant, who negotiated the conclusion of a stock acquisition contract with Nonindicted Company 1 and used material nonpublic information related to his business in transactions, such as acquisition of specific securities, thereby constituting the elements of Article 174(1) of the former Financial Investment Services and Capital Markets Act (amended by Act No. 11845, May 28, 2013; hereafter the lower court

As such, the lower court erred by misapprehending the legal doctrine and thereby acquitted the Defendant on the violation of the Financial Investment Services and Capital Markets Act due to the use of material nonpublic information.

2. The judgment of the court below

In light of the following circumstances, the lower court rendered a judgment not guilty of this part of the charges on the ground that the evidence submitted by the prosecutor alone is insufficient to acknowledge this part of the charges, and there is no other evidence

A. The Defendant, who actively and actively generated material nonpublic information, is an internal agent who uses material nonpublic information. The recognition of the subject of the use of material nonpublic information to such quasi-internals is reasonable to strictly interpret the limitation to transactions where the actor intentionally fails to disclose the information in question even though the actor has already created the information in question, and where the transaction is conducted without intentionally reserving only the formal procedure such as the conclusion of a conclusive contract, etc. in the situation where the information in question was actually created.

B. The instant decision to accept the instant case appears to have been very dynamic and dynamicly conducted at night on November 30, 2010 through December 1, 2010, and thus, it is difficult to readily conclude the point at which the instant material nonpublic information was created on November 25, 2010.

C. ① The Defendant continued to acquire the shares of Nonindicted Company 1 in the name of his family as well as himself (the wife Nonindicted 9, Nonindicted 10, and Nonindicted 11) before the purchase of the instant shares; ② In this case, the Defendant’s additional shares acquired around November 29, 2010 are merely 0.46% (197,50 shares/42,748,05 shares) of the total number of the shares issued by Nonindicted Company 1 at the time of the acquisition of the instant shares; ③ the Defendant used the name of Nonindicted 9, who is an existing shareholder, not another new third party in the acquisition of the instant shares; ③ used only the proceeds from the disposal of the shares of another company (○○ drugs) that was already owned without another additional fund mobilization; ④ the Defendant also held the shares acquired as above, it is doubtful whether it can be viewed as an act using material nonpublic information that was acquired by the Defendant.

3. Judgment of the court below

(a) Facts of recognition;

The following facts can be acknowledged according to the evidence duly adopted and examined by the court below.

1) Nonindicted Co. 1 is a company established on April 7, 1998 and listed on the KOSDAQ on April 22, 1997. Nonindicted Co. 1 was discovered that Nonindicted Co. 4, who was the largest shareholder and the representative director at the time of September 2005, was guilty of the window dressing accounting and the crime of breach of trust, and was under joint management by creditor financial institutions from October 18, 2005 to the date.

On November 2010, the Defendant was the largest shareholder of Nonindicted Co. 2 (hereinafter referred to as “Nonindicted Co. 2”) and Nonindicted Co. 3. Nonindicted Co. 9, the wife of Nonindicted Co. 3, and Nonindicted Co. 8, Nonindicted Co. 3, who was a deadly beneficial shareholder of Nonindicted Co. 2 and Nonindicted Co. 3.

2) Around May 2006, Nonindicted Co. 1 changed from Nonindicted Co. 4 to Nonindicted Co. 14 (the ownership of shares in the name of the wife). Around December 11, 2009, Nonindicted Co. 1 entered into an agreement on the performance of management normalization with the content that the redemption period of KRW 20.1 billion for creditor financial institutions and debts of KRW 20.1 billion shall be extended until December 31, 201, but the repayment period shall be extended to KRW 4 billion upon the failure to perform self-rescue plan during the year 2010.

Nonindicted Co. 1 conducted new projects, such as the reduction of annual reduction devices and the development of HTS security solution, and issued new capital increase several times, but did not achieve the results of the projects. In the third quarter of 2010, the net loss was about KRW 6.2 billion and the capital erosion rate was about KRW 41.6%.

Accordingly, from July 2010, Nonindicted 5 and Nonindicted 4, the representative director of Nonindicted Company 1, who is Nonindicted 5 and adviser, have promoted the sale of management rights through capital increase with capital increase issued by a third party for the extension of debt repayment period and corporate rehabilitation.

On November 2010, Nonindicted 4 also proposed the acquisition of Nonindicted Company 1 to the Defendant, who is the owner of a high school, and Nonindicted 5 also proposed the acquisition of Nonindicted Company 1 to the Defendant, and Nonindicted 3 also suggested that Nonindicted Company 1 acquired the shares of Nonindicted Company 3, which was promoted by Nonindicted Company 3, thereby proposing the method of promoting Nonindicted Company 1 through which Nonindicted Company 1 acquired the shares of Nonindicted Company 3.

3) On November 12, 2010, Nonindicted Co. 1 requested Nonindicted Co. 6’s accounting firm to evaluate the stock value of Nonindicted Co. 3. Nonindicted Co. 6’s external audit business from 2003 to 2005, Nonindicted Co. 2’s external audit business from 2010 to 2011, and Nonindicted Co. 7, a certified public accountant under its control, is a post-high school of the Defendant and Nonindicted 4.

Before receiving a request for evaluation from Nonindicted 5, Nonindicted 7 said that Nonindicted Company 1 would request a value assessment from Nonindicted Company 2’s vice head. After receiving a request from Nonindicted 5, Nonindicted 7 received the data on Nonindicted Company 3 from the regular director of Nonindicted Company 3 and the accounting officer, Nonindicted 3 received the data on Nonindicted Company 3.

As of November 25, 2010, Nonindicted 7 prepared an evaluation opinion on the adequacy of the asset acquisition value of Nonindicted Company 1 and Nonindicted Company 3’s shareholders, and offered it to Nonindicted Company 1. According to the said evaluation opinion, the said corporation assessed the stock value per common share (5,000 won) of Nonindicted Company 1, which is scheduled to take over between Nonindicted Company 1 and the shareholders of Nonindicted Company 3, according to a contract on the acquisition of shares, which is scheduled to take over between Nonindicted Company 1 and Nonindicted Company 3, and on September 30, 2010, the stock value per common share (5,000 won) of Nonindicted Company 3’s shares as of September 30, 2010, is presumed to be KRW 41,570 through 46,964.

However, at the time of Nonindicted Co. 3, the total assets amounting to KRW 4.6 billion, the liabilities amount to KRW 2.5 billion, and the capital amount to KRW 2.0 billion. Nonindicted Co. 3 is a company that conducts the original business related to the artificial agency business, and thereafter, intended to promote smartgboard business related to the energy management, but it does not seem to have any particular business results up to now.

4) On November 30, 2010, the Defendant received KRW 1.1 billion from the corporate passbook of Nonindicted Co. 2, 2010, and then remitted KRW 1.1 billion to Nonindicted Co. 1. The said corporate passbook of Nonindicted Co. 3 was closed, and according to the details of the transaction, the foreign currency deposit amounting to KRW 1.1 billion was made on November 29, 2010, but the amount of KRW 400 million was used directly for the repayment of the existing loan, and the loan amounting to KRW 1.1 billion was generated from the Defendant’s remittance of KRW 1.1 billion on the following day. Moreover, as deposit and withdrawal from time to time were repeated, the amount of loan amount was changed from KRW 100 to KRW 900 million from time to time.

Nonindicted Company 1 used the above borrowed money to pay overdue interest to creditor financial institutions, pay taxes, repayable bonds with preemptive rights, pay for wages, etc.

5) On December 1, 2010, Nonindicted Co. 1 made a resolution of the board of directors on the issue of capital increase with respect to the method of allocating the Defendant and Nonindicted Co. 2 to the third party, and around 14:00 on the same day, Nonindicted Co. 1 published the “public announcement related to the determination and change of the largest shareholder” purporting to the effect that the “an offering of capital increase in the amount of KRW 5 billion to Nonindicted Co. 2 and the Defendant is conducted, and accordingly the largest shareholder is changed” (hereinafter “information of this case”). The creditor financial institution of Nonindicted Co. 1 approved the alteration of the capital increase with respect to capital increase and the largest shareholder on December 14, 2010, extended the implementation period of self-help plan for one year in 2011.

On December 15, 2010, Nonindicted Company 1 offered capital increase with a third party’s KRW 5 billion allocated, and Nonindicted Company 2 and Defendant paid KRW 5 billion as share capital. Accordingly, Nonindicted Company 1’s largest shareholder was changed from Nonindicted Company 14 to Nonindicted Company 2.

On December 16, 2010, Nonindicted Co. 1 acquired 40% of Nonindicted Co. 3’s shares in KRW 4 billion from the Defendant, etc., and paid KRW 4 billion to the Defendant, etc. with the share acquisition price. Nonindicted Co. 1 paid the remainder of the share offering payment as of November 30, 2010 with the remainder of the share offering payment.

6) On June 5, 2012, seven persons, including the Defendant, Nonindicted 9, the Defendant, and Nonindicted 8, who are the wife of the Defendant, and Nonindicted 2, invested in kind 81.5% of the shares of Nonindicted Company 2 in the Nonindicted Company 1, and accordingly, the shares ratio of Nonindicted Company 1 in the Nonindicted Company 2 and its related parties (the Defendant, Nonindicted 9, Nonindicted 8, etc.) increased from 19.86% to 40.47%. The shareholders of Nonindicted Company 2 are Nonindicted Company 1 and Defendant as of June 30, 2012.

7) The Defendant, the wife, Nonindicted 9, and Nonindicted 10, Nonindicted 11, managed the securities transaction account on behalf of the wife, Nonindicted 9, and Nonindicted 11. From Nonindicted 9’s securities account, Nonindicted 34,500 (purchase price of KRW 23,574,535), Nonindicted 10’s securities account of KRW 4,186 (Purchase Price of KRW 9,585,940), Nonindicted 11, 208 (Purchase Price of KRW 8,023,025), Nonindicted 11’s securities account of KRW 3,440 (Purchase Price of KRW 7,875,100), KRW 14,60 (Purchase Price of KRW 9,790), KRW 14,600 (Purchase Price of KRW 9,790), KRW 209, KRW 1905 (Purchase Price of KRW 19,195).

On November 29, 2010, the Defendant sold approximately KRW 99 million shares of Nonindicted Company 1’s shares from the securities account of Nonindicted Party 9, and purchased KRW 197,500 shares of Nonindicted Company 1’s shares at KRW 98,243,529 (hereinafter referred to as “instant share transaction”) with the sales price (hereinafter referred to as “instant share transaction”).

8) Around November 2010 and December 2010, Non-Indicted Party 1’s share price trends, and from October 201 to November 29, 2010, to KRW 458 to KRW 490 cross, the upper limit of KRW 563 on November 30, 2010 was recorded, and the rise and decline continued to have been repeated until KRW 800 on February 201.

The trend of trading volume at the same time was about 23,536 weeks on October 8, 2010, but the trading volume was increased to at least 2,00,0000 weeks on average per day until November 24, 2010 ( October 25, 2010) and on November 26, 2010, the trading volume increased to at least 4,00,000 per day average by December 30, 201.

On the other hand, according to the KOSDAQ-like type of business index during the same period, daily trading volume from November 201 to December 2011, 2010 has been continuously maintained without any big change, and the share price has re-explosed at a level lower than October 201, while the share price has re-explosed the level around October 201.

B. Determination

1) Whether the instant information was created as an important information under the Capital Markets Act at the time of the instant stock transaction

A) First, the instant information is the content that the Defendant and Nonindicted Company 2 participated in the capital increase with the capital increase issued by Nonindicted Company 1. As seen earlier, Nonindicted Company 1’s failure to conduct new business around November 2010, etc. led to the situation where it would be repaid pursuant to the implementation plan for the normalization of management with the creditor financial institutions; and Nonindicted Company 1 could expect that such financial difficulties would be resolved when raising funds through capital increase with the capital increase.

B) Furthermore, we examine whether the instant information had already been created at the time of the instant stock transaction.

In general, material information generated inside a corporation is not completed as a matter of course, but concrete in the process of passing through a variety of stages, and it does not necessarily refer to the time when such information is generated objectively and clearly, and it is not necessarily the time when such information is generated, but if it is concrete to the extent that it has an important value in the decision making on the transaction of securities by comparing and evaluating the importance and possibility of occurrence of such information from a reasonable investor’s standpoint, it is generated (see Supreme Court Decision 2009Do1374, Jul. 9, 200).

The following circumstances revealed by the above facts. ① Nonindicted Company 1’s transferee 1’s proposal to acquire Nonindicted Company 1’s shares as the Defendant’s high school; Nonindicted Company 1’s representative director, offered to Nonindicted Company 3’s business by acquiring Nonindicted Company 1; ② Nonindicted Company 1 requested the accounting corporation to assess the value of Nonindicted Company 3; ③ Nonindicted Company 1 passed a resolution of the board of directors on December 1, 2010 for the allocation of value-added shares by Nonindicted Company 10 and Nonindicted Company 1’s offering of new shares as it appears to have been more favorable to Nonindicted Company 3’s offering of new shares than that of the Defendant’s offering of new shares. In light of the fact that Nonindicted Company 1’s offering of new shares and offering of new shares, Nonindicted Company 1’s offering of new shares would have been more than that of Nonindicted Company 100,000,000,000 won, which would have been more than that of Nonindicted Company 1’s offering of new shares, which would have been more favorable to the Defendant’s offering of new shares.

2) Whether the instant information was information that the Defendant came to know in the course of negotiating the conclusion of a contract

A) Article 174(1) of the Financial Investment Services and Capital Markets Act prohibits a listed company from using material nonpublic information related to its business operations. Thus, even if such information constitutes material nonpublic information, business relations should be recognized. The instant information is an information related to the business of Non-Indicted 1, since Non-Indicted 1 Company 1’s capital increase with capital increase through the third party allocation to the Defendant and Non-Indicted 2 Company.

B) Next, Article 174(1)4 of the Capital Markets Act prohibits any person who is entering into or negotiating a contract with a listed corporation from using material nonpublic information in the course of concluding, negotiating, or implementing the contract. Even if such information is involved in or jointly creating information, it is reasonable to interpret that the information includes not only the case in which the participant becomes aware of the information already generated through the passive receipt of such information, but also the case in which the information is actively or jointly generated in the course of entering into, or negotiating for, the contract. In light of the fact that the information is likely to undermine the fairness of the transaction or the soundness of the securities market by taking advantage of the information generated in the course of creating the information, and that the information is highly likely to undermine the fairness of the transaction or the soundness of the securities market.

As to this case, it is reasonable to view that the information of this case is an undisclosed important information under Article 174(1) of the Financial Investment Services and Capital Markets Act, since the defendant was aware of the involvement in the process of creating the management right in the process of negotiating and concluding the management right acquisition contract due to capital increase with the above consideration.

3) Whether the Defendant used the instant information

A) The use of material nonpublic information does not include any limitation or distinction between the act of using it on its own account for the purpose of pursuing its own interest or for another person’s interest, such as a disposition of treasury stocks that will accrue to the pertinent corporation’s interest (see Supreme Court Decision 2009Do1374, Jul. 9, 2009, etc.). Article 174(1) of the Capital Markets Act prohibits the act of “use” in the sale and purchase of specific securities or other transactions. Thus, in order to punish it as the use of material nonpublic information, it is insufficient to simply make a transaction of securities under the status of “holding” and it should be recognized as having made a transaction of securities by “use.” However, in a case where a securities transaction was conducted under the recognition of material nonpublic information, it is reasonable to view it as having been made using it, barring any special circumstance, and in a case where the use of material nonpublic information constitutes a single factor, it can be recognized as having been made through the use of material nonpublic information.

B) The following facts revealed by the above facts, namely, ① the Defendant was involved in the creation of the instant information, and was engaged in the instant stock transaction under the status of holding the instant information at the time of the instant stock transaction; ② the Defendant disposed of ○○ stocks at the time of the instant stock transaction and traded the instant stocks at the price; ③ the Defendant, even prior to the instant stock transaction, purchased the shares of Nonindicted Company 1 with the securities account of the wife or children, but the purchase price was much much higher than the previous stock transaction; ④ Nonindicted Company 1’s stock price and trading volume trend are not in line with the stock price and trading volume trend of the same type of business at the time of the instant stock transaction; ④ In view of the fact that the change in the stock price and trading volume of the instant information appears to be due to the existence and disclosure of the instant information; ⑤ In view of the fact that Nonindicted Company 1’s stock transaction, the Defendant, despite having lent surplus funds to Nonindicted Company 1 immediately after the instant stock transaction, did not appear to have used the instant information after the instant loan transaction.

C. Conclusion

Therefore, this part of the facts charged against the defendant constitutes the use of material nonpublic information under the Capital Markets Act, and thus, the court below erred in the misapprehension of legal principles as to the facts charged and thereby adversely affected the conclusion of the judgment. The prosecutor's assertion pointing this out is with merit.

4. Conclusion

Since the prosecutor's appeal is well-grounded, the part of the judgment of not guilty among the judgment below shall be reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it shall be again decided as follows after pleading (the defendant did not appeal against the judgment of the court below, the prosecutor filed an appeal only against the acquittal part of the judgment of the court below, and the judgment of the court below became final and conclusive. The scope of the party member's appeal is limited to the public prosecution against the acquittal part of the judgment of the court below, and the part of the judgment of the court member shall be reversed only when it is reversed (see Supreme Court en banc Decision 91Do140

Criminal facts

[The background of promoting the sale of management rights through capital increase with capital increase issued by the non-party 1 company to a third party]

Nonindicted Co. 1 was a corporation established on April 7, 198 for the purpose of manufacturing and selling the numerical control equipment of small machinery, which was listed on the KOSDAQ on April 22, 1997, but the window dressing accounting, etc. of representative director was discovered around September 2005 and began joint management by creditor financial institutions from October 18, 2005.

Around December 11, 2009, Non-Indicted Company 1 extended the repayment grace period of approximately KRW 20.1 billion to December 31, 2011. However, in 2010, Non-Indicted Company 1 entered into a “Agreement on the Implementation of Business Normalization” with the content that, upon failure to perform self-help plans during the year 2010, it would be difficult to expect the extension of repayment of debt and corporate rehabilitation to repay the debt above KRW 4.1 billion at the time of failure to perform self-help plans, but the net loss for the end of the quarter of March 2010, which was promoted as a new business, was lost due to the failure to implement the cyber security development project that was promoted as a new business around 2010, and the capital erosion rate was approximately KRW 6.2 billion at 41.6%, and therefore, Non-Indicted Company 1’s management promoted the sale of capital increase through the allocation of corporate rights to a third party.

【Promotion of Contract for Paid-in Capital Increase Allocation to Third Party by Non-Party 1】

On November 1, 2010, the Defendant, the founder of Nonindicted Company 1 and the former representative director of Nonindicted Company 4, the Defendant: (a) took over the management right of Nonindicted Company 1 by participating in the allocation of KRW 5 billion to a third party; (b) acquired the shares of Nonindicted Company 3 with the funds for the offering of new shares; and (c) continued negotiations with Nonindicted Company 4 upon receipt of a proposal for “the method of carrying out smartphones business as a new business from Nonindicted Company 1”; and (d) accordingly, (c) requested Nonindicted Company 1 to assess the ordinary share price of Nonindicted Company 3 to Nonindicted Company 6’s accounting corporation on November 25, 2010; and (d) completed the evaluation around November 25, 2010.

【Purchase of Stocks Using Material Nonpublic Information】

On November 29, 2010, the Defendant purchased KRW 197,500 shares of Nonindicted Party 1’s shares using Nonindicted Party 9’s alternative securities account in the name of the wife, using undisclosed information prior to disclosure (public notice on December 1, 2010) of Nonindicted Party 1’s “to conduct capital increase in the amount of KRW 5 billion and to change the largest shareholder” (public notice on December 1, 2010).

Accordingly, the Defendant, who is negotiating the conclusion of the contract with Nonindicted Company 1, used material non-indicted 1’s shares in the process of negotiating the contract.

Summary of Evidence

1. Partial statement of the defendant;

1. The lower court’s witness Nonindicted 7, Nonindicted 5, and Nonindicted 4’s partial statement in court

1. Examination protocol of the accused by prosecution;

1. The prosecutor’s statement of Nonindicted 13 and Nonindicted 5

1. As a result of the investigation of unfair trading on the stocks of Nonindicted Co. 1, a list of shareholders, an investigation order, each audit report, each audit report, the asset acquisition value evaluation statement (the common share value of Nonindicted Co. 3), an investigation report (Attachment of a report on material facts), and an application for opening a comprehensive transaction account;

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 443(1)1 and 174(1) of the former Financial Investment Services and Capital Markets Act (amended by Act No. 11845, May 28, 2013); selection of fines

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Reasons for sentencing

The Defendant’s crime of this case is a serious crime that undermines the transparency and soundness of the securities transaction market and causes damage to the general investors participating in the securities market, thereby harming the trust of the market, and thus harming the foundation of the market economy order. However, the Defendant was sentenced to a punishment against the Defendant by taking into account all the circumstances, such as the first offender who has no record of punishment, and the fact that the Defendant did not immediately dispose of the stocks acquired through the instant stock transaction and did not realize profits.

Judges Jeong-hee (Presiding Judge)

심급 사건

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원심판결

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