Defendant

Forms of correspondence

Attorney Park Jong-soo et al., Counsel for the plaintiff-appellant

A defendant shall be punished by imprisonment for not less than one year and six months.

1. Nonindicted Co. 14

(a) Fictitious sale;

No person shall make a false appearance of active trading in connection with the sale and purchase transaction of securities listed on the KOSDAQ or make another person make a disguised transaction that does not aim at the transfer of that right for the purpose of making a false judgment;

피고인은 2006. 2. 2. 9:59:23경 피고인이 관리하는 공소외 6 명의의 ◇◇◇ 서초지점 계좌( 번호 생략)를 통해 공소외 14 주식회사 주식 5,000주를 주당 3,915원에 매도주문을 내고, 한편으로는 같은 날 9:59:35경 피고인이 관리하는 공소외 2 명의의 ◆◆◆ 훼미리지점 계좌( 번호 생략)를 통해 2,000주를 주당 3,915원에 매수주문을 내어 같은 가격에 2,000주를 체결되게 한 것을 비롯하여, 별지 1. 범죄일람표(가장매매내역) 기재와 같이 2006. 2. 2.부터 2006. 4. 20.까지 총 462회에 걸쳐 1,289,753주를 매도주문을 내고 424,333주를 매수주문을 내어 307,035주가 체결되게 함으로써 가장된 매매거래를 하였다.

(b) Orders for high-priced purchase, false purchase, and market price and paper order;

No person may, notwithstanding that he knows that the sale and purchase transaction of securities is booming with the intention to attract anyone to trade such securities at the KOSDAQ market or carries out any transaction creating a misleading appearance of active trading or changing the market price thereof, the accused,

(1) On January 31, 2006, around 10:37:37: (a) immediately preceding conclusion was made through the account at the beginning of a branch (number omitted) in the name of Non-Indicted 6 managed by the Defendant; (b) KRW 25 won compared to the other party; and 3,125 won higher than the other party; (c), KRW 3,105 of the shares of Non-Indicted 14 Co. 14; and (d) KRW 3,100 KRW 3,100 KRW 1,00 KRW 3,110 KRW 3,125 KRW 21,53 KRW 3,120; and (c) KRW 2,522 KRW 3,120,000 KRW 21,53 and KRW 3,120 were successively entered into on the list of crimes (the details of order purchase); and (d) the number of shares issued on April 31, 2006 up to 194; and

(2) On February 2, 2006, around 10:24:46, the immediately preceding conclusion was made by Nonindicted 6’s account at the beginning point (number omitted) in the name of Nonindicted 6’s branch office (the number omitted), which was managed by the Defendant, and the other party’s 3,640 won lower than 120 won, and the other party’s 1,820,000 shares of Nonindicted 14 Co., Ltd. were offered and the purchase price was introduced as if they were introduced into the purchase price. In addition, on February 2, 2006 through April 20, 2006, as shown in the list of crimes (the details of false purchase orders) in attached Table 3, the order for false purchase was issued more than 446,492 share over 240 times in total, from February 2, 2006

(3) 2006. 2. 24. 시가결정을 위한 동시호가 시간대인 8:45:18경 같은 피고인이 관리하는 공소외 2 명의의 ◆◆◆ 훼미리지점 증권계좌( 번호 생략)를 통하여 예상체결가보다 90원 높은 4,450원에 공소외 14 주식회사 주식 1,500주를 매수주문을 내어 같은 가격에 1,500주가 체결되게 함으로써 당일 시가를 4,450원에 결정되게 한 것을 비롯하여, 별지 4. 범죄일람표(시가관여 주문내역) 기재와 같이 2006. 2. 7.부터 2006. 4. 21.까지 총 31회에 걸쳐 415,452주의 시가관여 주문을 하고,

(4) On February 7, 2006, at around 14:52:45 at the same time, concurrent houses for the decision of the closing price are 60 won higher than the immediately preceding conclusion price through the account at the beginning point (number omitted) in the name of Non-Indicted 6 managed by the Defendant, and at the same price 50 won higher than the expected conclusion date, 25,000 shares of Non-Indicted 14 Co. 14 Co., Ltd. were issued, and 5,000 shares were purchased at the same price, and the closing price was determined to be 3,770 won higher than the immediately preceding 50 won, as shown in the list of crimes (the summary of the order of closing 5.06 Co., Ltd.) from February 7, 2006 to April 21, 2006.

(c) Results of market price manipulation 1);

The Defendant acquired the unjust profits equivalent to KRW 1,169,706 in total of the profits from the accounts in the name of Non-Indicted 16 (U.S. 14) and Non-Indicted 17 (U.S. 16) from the amount of unjust profits from each transaction account in the attached Form 14 (U.S. 14).

2. Nonindicted Co. 15

(a) Fictitious sale;

No person shall make a disguised sale and purchase transaction of securities listed on the KOSDAQ which does not aim at the transfer of rights in the sale and purchase transaction of securities for the purpose of creating a misleading appearance of active trading or causing another person to make a false judgment;

피고인은 2006. 10. 10. 09:07:53경 피고인이 관리하는 공소외 7 명의의 ▲▲증권 서초지점 계좌( 번호 생략)를 이용하여 공소외 15 주식회사 주식 28,190주를 주당 6,880원에 매도주문을 내고, 같은 날 09:08:18경에 피고인이 관리하는 공소외 16 명의의 ●●증권 성남지점 계좌( (번호 생략))로 29,000주를 같은 가격으로 매수주문을 내어 28,190주를 상호 체결되게 한 것을 비롯하여, 별지 6. 범죄일람표(가장매매내역) 기재와 같이 2006. 10. 10.경부터 2006. 12. 27.경까지 총 39회에 걸쳐 같은 방법으로 38,632주가 체결되게 함으로써 가장된 매매거래를 하였다.

(b) Order for high-priced purchase, and order for market price and paper sales;

No person may, notwithstanding that he knows that the sale and purchase transaction of securities is booming with the intention to attract anyone to trade such securities at the KOSDAQ market or carries out any transaction creating a misleading appearance of active trading or changing the market price thereof, the accused,

(1) On October 10, 2006, around 09:08:18, Nonindicted Co. 15 issued orders to purchase KRW 6,880 per share of Nonindicted Co. 15 with the highest amount of KRW 180 per share of KRW 6,880 from October 9, 2006, 299, 6,880 per share of KRW 28,340,6,790 per share of KRW 311 share of KRW 28,340, 6,790 per share of KRW 311 share of the immediately preceding share price of KRW 6,700, higher than KRW 180 per share of Nonindicted Co. 16’s shares in Sungnam branch account (010207430) managed by the Defendant; and as indicated in attached Table 7.18, 2006, from October 9, 2006 to July 18, 2005

(2) On December 27, 2006, simultaneous 08:41:49, the market price of which was increased on the same day by providing all orders for purchase of 1,500 shares of 1,500 shares for the immediately preceding 1,50 won compared to the other 1,500 shares of 1,500 shares, and the other 46,500 shares higher than the other 1,50 shares of 1,50 shares from October 12, 2006 to January 9, 2007, as shown in [Attachment 8] List of Crimes No. 8. 53 times from October 12, 2006 to January 9, 207;

(3) 2006. 10. 27. 종가결정을 위한 동시호가 시간대인 14:59:56경 피고인이 관리하는 공소외 16 명의의 ◆◆◆ 신촌지점 계좌( 번호 생략)를 이용하여 직전 체결가 대비 110원, 상대호가 대비 400원 높은 8,500원에 1,260주를 매수주문을 내어 8,500원에 1,232주를 체결되게 함으로써 당일 종가를 상승시킨 것을 비롯하여, 별지 9. 범죄일람표(종가관여 주문내역) 기재와 같이 2006. 10. 9.부터 2007. 1. 5.까지 총 29회에 걸쳐 69,155주의 종가관여 주문을 하였다.

(c) Price manipulation 2) Results;

The Defendant acquired unfair profits equivalent to KRW 2,008,043,112 from the accounts in the name of Nonindicted 18, 16, and 17 from among the details of profit margins by the annexed market price manipulation account (Nonindicted 15 Co., Ltd.) due to the fictitious sale of stocks of Nonindicted 15 Co., Ltd.

1. Partial statement of the defendant;

1. Witness of Non-Indicted 12

1. Partial statement of each prosecutor's protocol of examination of the defendant against the defendant;

1. Each prosecutor’s protocol on Nonindicted 19, 6, 18, 17, 7, 9, 20, 21, and 16

1. Copy of Nonindicted 13’s statement of reasons for non-appearance and written statement

1. A criminal investigation report (including attached documents);

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

Articles 207-2 (1) 2, 188-4 (1) 3, and 188-4 (2) 1 of the former Securities and Exchange Act (amended by Act No. 8635 of Aug. 3, 2007; hereinafter the same shall apply) (Article 207-2 (1) 2, (2) 2, and 1 of the former Securities and Exchange Act (amended by Act No. 8635 of Aug. 3, 2007), and Article 207-2 (1) 2, (2) 2, and (2) 3, and (2) 1 of the former Securities and Exchange Act (amended by Act No. 8635 of Aug. 3, 200) (general)

1. Aggravation for concurrent crimes;

Article 37 (Aggravation of Concurrent Punishment for Crimes of Violation of the Securities and Exchange Act due to Market Price Manipulation of Stocks of Non-Indicted 15 Stock Companies with the heavier Punishment)

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (see, e.g., Articles 55(1)3 of the Criminal Act)

1. Summary of the assertion

Since the main body to whom the profits accrued from the account in the name of Nonindicted 18 belongs is Nonindicted 18, it should be excluded from calculating the profits that the Defendant acquired from the stock price manipulation in Nonindicted 15 Stock Company.

2. Determination

이 사건 기록에 의하여 인정되는 다음과 같은 사정들, 즉 ① 피고인은 공소외 15 주식회사 주식을 시세조종하는 과정에서 공소외 18로부터 교부받은 ▲▲증권 계좌( 번호 생략)도 사용하였던 점, ② 공소외 18은 ‘2006.말경 피고인의 부탁을 받고 ▲▲증권 계좌( 번호 생략)를 대여하여 주었다. 당시 잔고가 없는 계좌를 대여하였을 뿐, 피고인에게 자금 관리를 일임한 사실은 없다.’는 취지로 진술한 점(증거기록 제7608면 이하 참조), ③ 피고인의 주장과 같이 공소외 18이 피고인에게 계좌를 교부하면서 자금 관리도 일임하였음을 인정할 수 있는 객관적인 자료가 보이지 않는 점 등을 종합적으로 고려하면, 공소외 18 명의 계좌의 계산주체 및 이익의 귀속주체는 피고인이라고 봄이 상당하므로, 피고인 및 그 변호인의 주장은 받아들이지 아니한다.

Considering that the Defendant’s criminal act of this case (i.e., manipulation of the shares of Nonindicted Co. 14 and Nonindicted Co. 15), by means of using the funds of KRW KRW 100 billion and multiple securities accounts, and (ii) thereby obtaining a total of KRW 2 billion unfair profit, the crime of this case is not good in light of the expertise, scale, and gains acquired, etc. of the crime, and there is a record of punishment for the same criminal act, (ii) a considerable period of time, (iii) an unfair act such as manipulation of shares, etc. not only causes broad damage to many unspecified general investors, but also undermines sound investment awareness and undermines the development of the capital market, it is necessary to punish the Defendant with strict punishment corresponding thereto.

However, the punishment as ordered shall be determined by comprehensively taking into account the fact that the defendant has no record of being seriously punished as a crime, and other various circumstances that form the conditions for sentencing as shown in the records, such as the age, character and conduct of the defendant.

1. Summary of this part of the facts charged

A. Violation of the Securities and Exchange Act due to the manipulation of stock prices in Nonindicted Co. 14

The Defendant acquired the unfair profit amounting to KRW 1,039,553,036 due to the manipulation of market price through the fictitious sale of the shares of Nonindicted Co. 14.

B. Violation of the Securities and Exchange Act due to the stock price manipulation of Nonindicted Co. 15

The Defendant acquired unfair profit equivalent to KRW 3,847,408,657 due to the manipulation of market price through the fictitious sale of the shares of Nonindicted Co. 15.

2. The criminal defendant and his/her defense counsel;

(a) An account in which the defendant has only managed the funds of the account holder;

Since the subject of accrual of profits from the account in the name of the other persons except for Nonindicted 16, 17, 12, and 13 is each account holder, it shall be excluded from calculation of profits earned by the Defendant due to manipulation of each of the instant prices.

(b) An account that the defendant concurrently manages the funds of the defendant and title holder;

Since each account in the name of Nonindicted 12 and 13 is mixed with the funds of Nonindicted 12 and 13 and the funds of the Defendant, it is not the subject to which the Defendant reverts all the profits accrued from each of the above accounts.

3. Criteria for judgment;

In criminal proceedings, evidence that facts constituting a crime are presented by a prosecutor, and the facts constituting a crime must be proved by a judge to have high probability beyond reasonable doubt, and if there is no evidence to form such a high probability, it is inevitable to determine the defendant's interest even if there is suspicion of guilt against the defendant (see Supreme Court Decision 2007Do8783, Jun. 11, 2009, etc.).

Article 207-2 (1) of the former Securities and Exchange Act provides that a person who violates the provisions of Article 188-4 of the same Act ( subparagraph 2) shall be punished by imprisonment with prison labor for not more than 10 years or by a fine not exceeding 20 million won: Provided, That if the amount equivalent to three times the profit gained or the loss avoided by the violation exceeds 20 million won, he shall be punished by a fine not exceeding three times the profit or the loss amount evaded; and Article 207-2 (2) provides that "if the profit or the loss avoided by the violation of any subparagraph of paragraph (1) is 50 million won or more, the amount shall be punished by imprisonment with prison labor for not less than 5 billion won (see subparagraph 1); if the profit or the loss avoided by the violation of Article 207 (2) of the former Securities and Exchange Act is 50 million won or more, it shall be punished by a fine not less than 3 years (see subparagraph 2); if the profit or loss amount avoided by the violation of Article 217 (2) of the former Securities and Exchange Act, it shall be punished by a fine not less than 97.

Meanwhile, in the event that multiple persons jointly commit an act of unfair trade, such as market manipulation, the profits accrued therefrom do not mean the profits acquired by all accomplices who have participated in the crime, but rather means the profits acquired by each criminal who has participated in the act of violation (see Supreme Court Decision 2005Do4645, Dec. 14, 2007, etc.). However, without any reasonable ground, the profits accrued to others who are not accomplices cannot be included in the profits accrued from the act of violation.

4. Determination

(a) An account in which the defendant has only managed the funds of the account holder;

Of the evidence submitted by the prosecutor, the calculation entity of the account in the name of the other persons except for Nonindicted 16, 17, 12, and 13 and the person to whom the interest accrued is the defendant does not appear to be evidence to support the fact that the defendant is the defendant. Rather, according to the statement of Nonindicted 6, 7, 9, 21, etc., the fact that Nonindicted 6, 7, 9, and 3 are not the defendant. The profits from the account in the name of the other persons except for Nonindicted 16, 17, 12, and 13 shall be excluded from the calculation of the defendant's profits from the price manipulation of each of the instant cases.

(b) An account that the defendant concurrently manages the funds of the defendant and title holder;

According to the records of this case, the Defendant used the respective accounts received from Nonindicted 12 and 13 in the process of manipulating the shares of Nonindicted 15 Co., Ltd., and Nonindicted 12 and 13 transferred the account to Nonindicted 12 and 13, the fact that Nonindicted 12 and 13 was in charge of managing the funds of the Defendant, and the fact that the Defendant operated the funds of Nonindicted 12 and 13 together without any special distinction between

However, Non-Indicted 12 and 13 were not prosecuted on the grounds that the Defendant jointly conspired with the shares of Non-Indicted 15 Co., Ltd., and there is no evidence to prove that Non-Indicted 12 and 13 jointly with the Defendant that the shares of Non-Indicted 15 Co., Ltd. were put into price manipulation. As seen earlier, the part attributable to Non-Indicted 12 and 13 out of the profits accrued from each account in the name of Non-Indicted 12 and 13 should be excluded from calculating the profits earned by the Defendant due to the stock price manipulation of Non-Indicted 15 Co.

Therefore, in order to include the part belonging to the defendant among the profits accrued from each account in the name of Nonindicted 12 and 13 in calculating the profits earned by the defendant due to the stock price manipulation of Nonindicted Co. 15, the part belonging to Nonindicted 12 and 13 among the profits accrued from each account in the name of Nonindicted 12 and 13 should be identified separately from the part belonging to the defendant.

However, according to the records of this case, including the testimony of Nonindicted 12, Nonindicted 13’s witness, Nonindicted 12, and Nonindicted 13’s written copies, etc., it appears that Nonindicted 12 and 13 only decided to settle profits since they had been entrusted with the management of funds to the Defendant by pro rata relationship, and that there was no specific agreement between the Defendant on the standards for distribution of profits from discretionary sale and purchase, etc. Furthermore, among the evidence submitted by the prosecutor, there is no evidence that can specify the part attributable to Nonindicted 12 and 13 among the profits from each account in the name of Nonindicted 12 and 13.

Therefore, as long as it is difficult to separately specify the part attributable to the defendant, there is no reason to consider in the sentencing that considerable part of the profits accrued from each account of Nonindicted 12 and 13 should be attributed to the defendant, even though it can be considered in the sentencing, in calculating the profits earned by the defendant due to the manipulation of stock prices of Nonindicted 15 Co., Ltd., which is part of the constituent elements.

5. Conclusion

Thus, since the facts charged in this part of the facts charged constitute a case where there is no proof of each crime, it should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act, but as long as it is found guilty of each violation of the Securities and Exchange Act in each comprehensive crime relation,

[Attachment]

Judges Man-Gyeong (Presiding Judge)

(1) The indictment contains KRW 1,040,722,742. However, as seen below, the sum of the profits earned by the Defendant was stated in the indictment. However, as seen in the “not guilty portion” below, it cannot be said that the Defendant’s total of KRW 1,039,53,036 ( KRW 1,040,72,742-1,742-1,69,706) was attributed to the Defendant.

2) The indictment contains KRW 5,967,339,570, the sum of profits generated from the Defendant’s account managed by the Defendant, but it is apparent that the sum of unjust enrichment recorded in the details of profit margins from each market price manipulation account (Nonindicted 15 Co., Ltd.) is KRW 5,855,451,769. As such, the above amount is deemed to be a clerical error. Meanwhile, as seen below, as seen in the “not guilty portion” below, the above amount is deemed to be a clerical error. Meanwhile, as the Defendant’s total sum of profits other than profits generated from the account, which is the subject of calculation and the subject of profit accrued to the account, (5,85,45,451,769, 2,08, 112) cannot be deemed to have accrued to the Defendant.

(3) Supreme Court Decision 97Do2609 delivered on December 26, 1997 concerning the case of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, including Supreme Court Decision 81Do1830 delivered on August 25, 1981 concerning the violation of the Attorney-at-Law Act, and Supreme Court Decision 2002Do46 delivered on August 23, 2002 concerning the case of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, etc. and the Act on the Aggravated Punishment, etc. of Specific Crimes, etc. of Specific Crimes, are judged that the whole amount of money and valuables are inseparably identical in case where the nature of the money and valuables received is indivisible. In calculating the profits acquired by the actor due to the price manipulation by applying the above logic, where the nature of the profits derived from the price manipulation as a profit derived from the price manipulation or from the stock price increase due to other acts or stock price increase factors is indivisible, but this case can not be applied as it is to this case.