2011 fixed 1394 Violation of the Financial Investment Services and Capital Markets Act

1. ○○ (0000 - 00000) and other projects;

Residence, Busan Hagu, 00

Busan High domicile ○○ ○

2. ○○ (0000 - 00000) Other projects

Housing Yangcheon-gu Seoul Metropolitan Government 00

State of origin 00

3. ○○ Co., Ltd. (0000 - 00000)

Seoul Yangcheon-gu Seoul Metropolitan Government ○

Representative Director Lee 00

4. ○○ (0000 - 00000) and other projects.

Residential Goyang-gu, Soyang-gu 0

Yongsan-gu Seoul Metropolitan Government ○

5. ○○ Co., Ltd. (0000 - 00000)

Seoul Yangcheon-guO

interest of the representative director;

Matern police officer;

Law Firm Yoon, Attorney Kim Gyeong-hwan (for the purpose of Defendant 1)

Attorney Mobilization (for the purpose of this Act, ○○, ○○)

August 26, 2011

Defendant tea, ○○, OO, and ○○ are punished by each fine of KRW 7 million, and Defendant O andO shall be punished by each fine of KRW 5 million.

When Defendant ○○, ○○, and ○○ fail to pay each of the above fines, the said Defendants shall be confined in a workhouse for a period calculated by converting KRW 50,000 each of the above fines into one day.

Facts of crime

No one shall engage in financial investment business, such as financial brokerage business, without authorization for financial investment business under the Financial Investment Services and Capital Markets Act.

1. Defendant’s difference

From November 16, 2009 to November 201, 2010, the Defendant opened an O’s website (www.O. co. kr) on the Internet at the O’s office operated by himself/herself in Gangnam-gu Seoul, Seoul, and recruited futures and options investors, lent the securities account managed by him/her to his/her members, and deposited the account in the deposit account with the amount of KRW 15 million to KRW 15 million to KRW 18 million to KRW 18 million, and then loaned the account to his/her members with the deposit money. The Defendant received a financial investment brokerage commission under the pretext of interest and fee for the deposit money.

Accordingly, the defendant operated an investment brokerage business without obtaining authorization from the competent authorities.

2. The crime committed by the Defendant ○○ and the Defendant ○○.

A. From January 2009 to March 201, 201, the Defendant opened an O’s website (www. O.O.co., Ltd.) on the Internet at the O’s office located in Yangcheon-gu Seoul, Yangcheon-gu, Seoul, and recruited futures and options investors, and lent the securities account managed by the said company to its members. On the other hand, the Defendant lent the securities account to the said account as deposit money by depositing KRW 15 million to the said account, and then, the Defendant received a financial investment brokerage commission from its members under the pretext of interest and fee for the use of the account.

Accordingly, the defendant operated an investment brokerage business without obtaining authorization from the competent authorities.

B. Defendant ○○ Co., Ltd., in the place indicated in the preceding paragraph from January 2009 to March 201, 200, ○○○, the representative director of the Defendant, carried on the investment brokerage business without obtaining authorization from the competent authority as above.

3. Crimes committed by Defendant ○○ and a stock company ○○

A. From January 2009 to November 201, the Defendant opened an O’s website (www. O.com) on the Internet at the O’s office located in Yangcheon-gu Seoul, Yangcheon-gu, Seoul, and recruited futures and options investors, lending the securities account managed by the said company to its members, while lending the securities account to the said members, and then depositing the amount of KRW 15 million to the said account as a deposit deposit, and then receiving a financial investment brokerage commission from its members under the pretext of interest on the deposit money and fee for account use, etc.

Accordingly, the defendant operated an investment brokerage business without obtaining authorization from the competent authorities.

B. Defendant OO

From January 2009 to November 201, the Defendant run the investment brokerage business without obtaining authorization from the competent authority as above, ○○, the representative director of the Defendant, in the places indicated in the preceding paragraph.

Summary of Evidence

1. Defendants’ respective legal statements

1. Some police interrogation protocol against the Defendants

1. Each investigation report (to submit O data, to attach all certificates of ○○○ registered matters of a stock company and screen pictures on its website, to attach all certificates of ○○ registered matters of a stock company, and to make a report to the Financial Services Commission);

1. The current status of an enterprise suspected of running financial investment business, its business registration certificate, and copy of its business registration certificate;

Application of Statutes

1. Article applicable to criminal facts;

(a) Defendant 1: Article 44 Subparag. 1 and Article 11 of the Financial Investment Services and Capital Markets Act (Selection of Fines)

B. Defendant corporation, ○○ corporation: Articles 448, 444 subparag. 1, and 11 of the Financial Investment Services and Capital Markets Act;

1. Detention in a workhouse (Defendant vehicle, ○○, ○○, ○○, and ○○);

Judgment on the assertion of Articles 70 and 69(2) of the Criminal Code

1. The defense counsel of Defendant 2, 00, 00, and 00 asserted that the above Defendants traded financial investment instruments through a contract with the opening of the financial investment business entity among the financial investment businesses authorized. Thus, the Defendants asserted that they are not subject to authorization under Article 7(6)2 of the Financial Investment Services and Capital Markets Act (hereinafter “Capital Markets Act”).

Article 7(6)2 of the Financial Investment Services and Capital Markets Act provides that "in the case of trading financial investment instruments through an investment trader or an investment broker, it shall not be deemed a financial investment business under any subparagraph of Article 6(1)." Thus, even if "the trading of financial investment instruments constitutes the concept of an investment trading business under the Financial Investment Services and Capital Markets Act, it shall not be deemed a financial investment business for an investment trader or an investment broker, so if an individual runs an investment brokerage business other than an investment trading business, it shall not be subject to Article 7(6)2 of the above Act. The following circumstances recognized by the records of this case are as follows: (i) the above Defendants deposited money into the account in the name of the securities company connected to the securities company by lending deposit money to the customers; (ii) the Defendants have customers conduct options and futures trading under the name of the above Defendants using the above account, and (iii) if their direct options and futures trading are likely to occur or losses are incurred to them, it shall not be deemed that the Defendants actually accrued profits and losses accrue to them."

Therefore, the defense counsel's assertion that the business of the above Defendants is not subject to authorization under the Capital Markets Act is without merit.

2. Defendant 2’s defense counsel argues that the above Defendant’s business was not at issue upon the closure of internal investigation by a person who operated the same company, and that the above business was not at issue due to suspicion, and that the pertinent business was commenced by a law firm after hearing that the above business was not subject to authorization of the Capital Markets Act. Thus, Defendant 2’s defense counsel asserts to the effect that the above business constituted legal mistake as stipulated in Article 16 of the Criminal Act because there was no awareness of illegality.

On the other hand, there is no evidence to prove that Defendant ○○, prior to the commencement of business, he/she trusted and started business on the above-mentioned closure disposition prior to the commencement of business, or was consulted by law firm as above, and even if the above Defendant was consulted by law firm, etc., on the premise that the advice was made on the premise that the advice was notified of accurate facts, and that the contents are not submitted in a concrete and detailed manner, so long as there is no evidence to support that the above Defendant’s act was believed not to constitute a crime, it does not appear that there is a justifiable reason for misunderstanding of the above Defendant’s act.

Therefore, the above defense counsel's assertion cannot be accepted.

3. Defendant Lee ○-○ and Lee ○-○’s defense counsel asserted that the above Defendants engaged in credit business and did not engage in financial investment business. However, in light of the following circumstances acknowledged by the records of this case, the above Defendants, i.e., in the case of the above Defendants, did not actually lend money to customers, but did not lend money to customers, so that customers can use and trade the account by offering a bank account under the name of their own bank, so that customers can use and trade the account. In the case of credit business, it is reasonable for them to receive a certain rate of interest per month on ordinary loans, but not receive monthly interest, and in fact, the above Defendants received money in proportion to each transaction only when they actually engaged in futures and options transactions. In light of the fact that the above Defendants actually received money according to the agreed rate of interest per month, it is not reasonable to view that they are engaged in financial investment business by collecting fees and fees for futures and options transactions from customers in the form of monetary loans.

4. Since Defendant OO Co., Ltd. and ○○○ Co., Ltd. reported the closure of business on December 31, 2007 and around December 30, 2007, the above Defendants are not legally liable for the representative’s act.

However, according to the records of this case, in the case of the above Defendants, the above Defendants did not dissolve and conduct liquidation procedures and continue to exist until now. Thus, even if the above Defendants reported the closure of business before the above Defendants, such circumstance alone does not lead to the exemption of liability under the joint penal provisions for the act of their representative as stated in the judgment. Thus, the above Defendants’ assertion cannot be accepted (see, e.g., Supreme Court Decision 2006Do134, Apr.

Judges Song Hona