Plaintiff (Attorney Nam-hee et al., Counsel for plaintiff-appellant)

The Governor

April 24, 2014

Seoul Administrative Court Decision 2012Guhap29189 decided July 4, 2013

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant's refusal to pay monetary rewards to the plaintiff on May 25, 2012 is revoked.

2. Purport of appeal

The same shall apply to the order.

1. Details of the disposition;

A) On December 22, 2009, the Plaintiff reported to the Defendant the following details related to the IMSSF Co., Ltd. (hereinafter “SESSF”)

본문내 포함된 표 무자본 M＆A를 통한 공모자금 횡령 ○ 대우솔라 경영권을 행사하는 세종 IB 기술투자는 3,000만 주 유상증자를 주당 700원에 실시하고 공모된 자금 210억 원 중 세종 IB 기술투자가 타 법인을 인수하기 위해 설립한 세종기업구조조정조합 3호 펀드에 공모자금 중 절반에 해당하는 100억 원을 출자함 ○ 세종 IB 기술투자는 세종기업구조조정조합 3호 펀드에 출자한 자금으로 세븐코스프의 BW 133억 원을 소유하고 있는 피터벡앤파트너스로부터 소외 2라는 차명을 내세워 2009. 6. 19. 신주인수권 3,725,158주(29.47%)를 주당 255원에 매수하는 계약을 체결함 ○ 소외 2는 2009. 8. 26. 피터벡앤파트너스로부터 매수한 신주인수권 3,725,158주를 소외 3, 소외 4, 소외 5, 소외 6, 소외 7, 소외 8, 소외 9, 소외 10, 소외 11 9명한테 주당 745원에 매각하여 불과 두 달 만에 신주인수권만으로 1,825,327,420원의 시세 차익을 올리게 됨 ○ 소외 2가 9명에게 신주인수권을 매도하고 이틀 후 열린 세븐코스프의 임시 주주총회에서 세종 IB 기술투자의 이사, 감사가 세븐에너지 그룹과 동수로 경영진에 선임됨 ○ 여기서 과연 피터벡은 세종한테 신주인수권만 매각하였을까를 따져봐야 할 것임. 피터벡이 소외 2라는 사람한테 신주인수권을 매각하지 않고 직접 세종 IB 기술투자에 신주인수권을 매각하였다면 두 달 만에 18억 원에 가까운 시세 차익을 볼 수 있었을 텐데 이를 포기하고 소외 2 개인한테 신주인수권을 매각하였다고 볼 수는 없을 것임 ○ 세종 IB 기술투자는 소외 2를 내세워 세븐코스프의 52% 지분을 보유 중인 피터벡으로부터 3,725,158주(29.47%)의 BW를 인수하기 위해 대우솔라의 감자를 진행했고 대규모 유상증자를 실시한 후 자회사 세종기업구조조정조합 3호 펀드를 설립하여 세븐코스프의 경영권을 취득하려는 전형적인 무자본 M＆A를 시도하고 있는 것으로 보임 ○ 무자본 M＆A를 시도하여 경영권을 취득한 자들은 세븐코스프 경영권을 취득하자마자 인천 남동공단에 있는 공장부지를 180억 원에 매각하고 인도네시아 금광에 투자한다며 123억 원을 해외로 빼돌리고 있음 ○ 세종 IB 기술투자는 이미 IC코퍼레이션 (현 국제건설)의 경영권을 취득할 때도 이런 식으로 BW를 취득하여 경영권을 취득한 경험이 있는 기업사냥꾼 집단으로 당시의 IC코퍼레이션 BW 소유주가 DKR 오아시스펀드가 아닌 소외 12가 소외 13이라는 차명으로 소유 중이었다는 말이 있는 것처럼 세븐코스프의 BW를 소유하고 있는 피터벡 또한 철저한 조사를 통해 세종 IB 기술투자가 불법으로 경영권을 취득하여 수많은 소액주주들한테 피해를 주는 일이 없도록 하여야 할 것임

B) On December 29, 2009, the Defendant respondeded to the Plaintiff on December 29, 2009, that “a civil petition on the charge of embezzlement and breach of trust of return-at-law shall be treated in accordance with the judicial procedure, and it is difficult to treat the civil petition as administrative procedure of the Defendant.”

C) On April 9, 2010, the Plaintiff reported to the Defendant the content of the instant company again, and submitted the said report accompanied by data, such as the current status of the appointment of directors prepared by the Plaintiff.

The third class IB investment of 00,000 SPP 2.00 SP 2.00,000 SP 2.00 SP 2.00,000 SP 2.00 SP 9,000 SP 2.00,000 SP 200,000 SP 12,370,646 (70,000 per share). The remaining 59% of SP 200,000,000 SP 200,000 SP 200,000,000 SP 9,000 SP 20,0000,000,00000,0000,0000,0000,0000,0000,0000,0000,000,0000,0000,000,0000.

D) As to this, the Defendant responded to the Plaintiff to the effect that “an investigation into the embezzlement related to the exercise of management rights is under the jurisdiction of the judicial authority.”

E) After April 201, 300: (a) AENF was abolished on the KOSDAQ, and on July 20, 201, the Plaintiff reported the following facts to the Defendant:

본문내 포함된 표 워런트 불법거래, 무자본 M＆A 후 해외자원 개발 허위공시 123억 원 횡령 ○ 세종 IB 기술투자는 2009년 8월경 세븐코스프 경영권 인수를 시도하는데, 그 사전작업으로 2009. 6. 19. 소외 2라는 차명을 내세워 유명한 워런트 사냥꾼 피터벡앤파트너스로부터 신주인수권 3,725,158주(29.47%)를 주당 255원 매입금액 합계 949,915,290원에 매입 ○ 소외 2는 신주인수권만 매수했기 때문에 신주인수권을 행사하여 주식발행을 하려면 신주인수권 행사가 만큼의 자금을 더 투입해야 하는 위험을 무릅쓰고 워런트 사냥꾼 피터벡으로부터 신주인수권을 매입한 것임 ○ 약 2달 후인 2009. 8. 26. 소외 2는 피터벡으로부터 매입한 신주인수권을 소외 3 등 9인에게 주당 745원에 매각. 총 매각금액은 2,775,242,710원으로 소외 2는 불과 2달 만에 신주인수권 만으로 1,825,327,420원의 매매차익을 보게 된 것임 ○ 소외 2가 소외 3 등 9인에게 신주인수권을 매각하고 2일 후 열린 2009. 8. 28.자 임시 주주총회에서 세종 IB 기술투자 측 인물들이 등기이사로 선임되어 세종 IB 기술투자는 세븐코스프 이사진으로 선임되어 경영권을 행사하게 됨 ○ 세븐코스프의 경영권을 인수하자마자 세븐코스프의 남동공단 공장부지를 185억 원에 매각해버리고 세븐에너지 스틸이 이엔텍이라는 상장사에 매각하려다 불발된 인도네시아 금광 개발 사업에 123억 원을 출자한다는 공시를 함. 그러나 이 공시는 불과 1년 만에 허위공시로 밝혀지고 세븐에너지 스틸이 추진했던 인도네시아 금광 개발에 관여했던 이엔텍, 세븐코스프 모두 상장 폐지됨

F) Meanwhile, on March 8, 2011, based on the anonymous informants’ information that there was a suspicion of unfair conduct in the market price adjustment, the use of undisclosed information, and the spread of false facts in relation to 3 NE, the Defendant requested the Korea Exchange to conduct an investigation into the unfair trade practices related to NE on March 8, 201, and the Korea Exchange notified on June 17, 201 that there was a suspicion of using material nonpublic information, and started a planning and investigation from June 23, 2011. Thereafter, on March 28, 2012, the Defendant issued a survey on the unfair trade practices related to NEF and announced the results of the investigation to the prosecutor’s office. The Defendant published a survey on the type of the unfair trade practices discovered by the Defendant and the summary of the measures taken as follows (hereinafter “instant measure”).

As a result of the investigation into the unfair trading in the securities market included in the main text, 000 ○○○ 200 million won of the largest shareholder (21% of the shares) and the acquisition price of preemptive rights (10 billion won of the shares) from the bonds company Eul as of August 2009, which was 8.6 billion won of the acquisition price, were taken over through SE Co., Ltd., a non-listed corporation, as of September 2009 and did not enter the fact of borrowing funds and acquiring stocks as if the acquirer were financially able to obtain funds, and paid 12.3 billion won of the outstanding shares to the same company by borrowing additional KRW 12.3 billion of the outstanding shares from ○ 200,000,000,000 won of the outstanding shares, P Co., Ltd. received KRW 130,000 of the outstanding shares from 12.3 billion of the outstanding shares to 200,000 won of the outstanding shares and KRW 13.5 billion of the outstanding shares.

G) On May 10, 2012, the Plaintiff requested the Defendant to pay a monetary reward. However, on May 25, 2012, the Defendant refused the payment of a monetary reward on the ground that “the Plaintiff filed a civil petition based on published data, was investigating the Plaintiff’s civil petition, and was accused to the prosecution according to the results of the investigation, and thus does not constitute a ground for the payment of a monetary reward” (hereinafter “instant disposition”).

H) Meanwhile, Article 435(7) and (8) of the Financial Investment Services and Capital Markets Act and Article 384(8) and (9) of the Enforcement Decree of the Act on the Return of Short-Swing Profit and Investigation and Reporting of Unfair Trading (amended by Act No. 2012-25, Oct. 23, 2012; hereinafter “the Financial Services Commission’s Notice”) concerning the payment of monetary rewards for unfair trading are as follows.

본문내 포함된 표 ▣ 단기매매차익 반환 및 불공정거래 조사·신고 등에 관한 규정 제37조(포상금 지급대상) ① 포상금은 다음 각 호의 1에 해당하는 불공정거래행위를 신고한 자로서 이를 적발 또는 그에 따른 조치에 도움이 되었다고 인정된 자에게 지급한다. 3. 법 제178조의 규정에 따른 부정거래행위 등 제34조(신고 방법) ① 영 제384조 제1항의 규정에 따라 불공정거래행위 등을 신고하고자 하는 자는 다음 각 호의 기준에 따라 금융감독원장(이하 "감독원장"이라 한다)에게 신고하여야 한다. 1. 당해 신고의 내용이 특정인의 불공정거래행위 등과 관련이 있을 것 2. 위반행위자, 장소, 일시, 방법 등 불공정거래행위 등이 특정될 수 있도록 구체적인 위반사실을 적시할 것 3. 당해 신고를 하는 자의 신원(성명·주민등록번호·주소 및 전화번호)을 밝힐 것 제35조(신고 접수 및 처리) ② 감독원장은 신고사항이 다음 각 호의 1에 해당하는 경우에는 이를 접수하지 아니하거나 이미 접수한 때에는 조사 또는 심사를 하지 아니하고 처리를 종결할 수 있다. 5. 공시자료, 언론보도 등에 의하여 널리 알려진 사실이나 풍문을 바탕으로 신고한 경우로서 새로운 사실이나 증거가 없는 경우 제38조(포상금 지급대상 제외) 제5조의 규정에 불구하고 다음 각 호의 어느 하나에 해당하는 경우에는 포상금을 지급하지 아니한다. 1. 조사결과 신고내용이 적발된 불공정거래행위와 직접적인 관련이 없거나 법 위반의 정도가 경미한 단순 법규위반에 해당되는 경우(다만 신고자가 혐의자를 잘못 적시하거나 구체적으로 적시하지 않은 경우라도 당해 신고내용에 따라 불공정거래행위자를 적발한 경우에는 포상금을 지급할 수 있다) 7. 기타 포상금 지급이 명백히 불합리하다고 인정되는 경우

[Reasons for Recognition] The facts without dispute, Gap evidence Nos. 1, 2, 3, Eul evidence Nos. 1 through 3, 23 through 27, the purport of the whole pleadings

2. Judgment on the defendant's main defense

A. Summary of the defendant's assertion

The Defendant’s re-examination of the instant disposition on the Plaintiff’s claim for payment of monetary rewards was served on Nonparty 17 of the apartment security guards residing in the Plaintiff on May 31, 2012, and the instant lawsuit was filed on August 31, 2012 with the lapse of 90 days from that date, and is unlawful.

B. Determination

According to Article 20(1) of the Administrative Litigation Act, "a revocation lawsuit shall be instituted within 90 days from the date when the person becomes aware of the disposition, etc." means the date when the person becomes aware of the disposition.

According to the evidence No. 6, it can be acknowledged that Nonparty 17 of the apartment security guard residing in the Plaintiff received registered mail sent by the Defendant to the Plaintiff on May 31, 2012. However, there is no evidence to deem that the registered mail was sent to the Plaintiff by the Defendant, or that the registered mail was sent by the said security guard to the Plaintiff, or that the Plaintiff delegated the said security guard with the authority to receive registered mail or with the authority to process matters subject to the instant disposition on behalf of the Plaintiff. Therefore, it cannot be said that the Plaintiff was served with the re-written examination of the instant disposition on May 31, 2012, or that the instant disposition was known. Accordingly, the Defendant’s defense on a different premise is without merit.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

The defendant did not commence the investigation despite the plaintiff's repeated report but closed the listing, and during this process, the plaintiff's report and accompanying documents were made a great help in the investigation of the defendant, and thus, the plaintiff's report is subject to a monetary reward.

B. Relevant statutes

Attached Form "Related Acts and subordinate statutes" shall be as specified.

C. Determination

1) Whether the Plaintiff’s reporting act constitutes an act subject to monetary rewards

A) According to Article 435(7) and (8) of the Act, Article 384(8) and (9) of the Enforcement Decree of the same Act, Article 37(1) and Article 38(1) of the Regulations on the Payment of Monetary Rewards, a monetary reward may be paid to a person who reported false acts, such as acts using undisclosed information under each subparagraph of Article 37(1) of the Regulations on the Payment of Monetary Rewards, acts such as market price manipulation, unfair trading, leakage of information, etc., falsely entered acts such as registration statement, and unfair trading acts such as business report, and a person who is recognized as helpful to detect or take measures accordingly. Accordingly, in the following, the details of each report made by the Plaintiff to the Defendant on July 20, 201 (hereinafter “Plaintiff’s report”).

B) Whether the Plaintiff’s report includes an unfair trade practice under the law

앞서 본 처분의 경위 및 을 제4, 5, 8 내지 11호증의 각 기재와 변론 전체의 취지를 종합하면, 원고의 신고 내용은, 세종IB기술투자가 자신이 경영권을 행사하는 대우솔라의 감자 후 대규모 유상증자를 하여 공모된 자금 중 100억 원으로 피터벡앤파트너스로부터 세븐코스프의 신주인수권부사채를 인수하여 그 경영권을 취득하고, 세븐코스프의 재산을 매각하여 해외로 빼돌리는 방식으로 공모자금을 횡령하고 있으니 소액주주들의 피해가 없도록 세종IB기술투자를 조사해 달라는 것이 주된 취지인 사정을 알 수 있다. 원고의 이러한 신고에는 세종IB기술투자가 세븐코스프의 경영권을 획득한 뒤 세븐코스프의 자금을 횡령하거나 배임에 해당한다는 사실만이 기재되어 있을 뿐 포상금 지급규정 제37조 제1항 각 호에서 규정하고 있는 불공정거래행위가 전혀 특정되어 있지 아니하여 포상금 지급대상이 되는 신고라고 보기 어렵다.

C) Whether the Plaintiff’s report was helpful to the instant measure

In light of the following circumstances, the Plaintiff’s report cannot be deemed to have been helpful for the measure of this case, considering that there is no dispute between the parties, or considering the respective descriptions of Gap’s evidence Nos. 2, 3, Eul’s evidence Nos. 1 through 5, 8 through 11, 23 through 27, and the overall purport of the pleadings:

(1) As seen earlier, the purport of the Plaintiff’s report is to report the embezzlement under the Criminal Act, and the Plaintiff’s report is different from the unfair trading under Article 178(1)2 of the Act, which is the facts suspected of the instant measure, and the Plaintiff’s report seems to be irrelevant to the instant measure with respect to those inside the IMSF companies, by urging the investigation into the Class IB technology investment, etc.

(2) The Plaintiff’s report calls for the already published facts, and there is little letter that conforms to the instant measure among the heated facts. However, for the following reasons, it is difficult to view that the contents of the two are different and that the Plaintiff’s report was helpful in the instant measure.

(A) the State-owned Ma&A

The Plaintiff’s report obtained the management right of IMSF through 3NF&A and embezzled funds overseas, but it is difficult to view that taking over the management right of NASFF’s PEF’s 300s based on the public offering fund constitutes MF&A. In addition, the instant measure is completely different from the content of Nonparty 1 (Plaintiff: Nonparty 1) etc.’s acquisition of NASF’s 30s with the fund, which is a gold-luminous development company owned by Nonparty 1, and 30s acquisition of 51% shares of ESSF’s 51% with the sales fund, thereby making the IMS probing Enisia purchase at a high price and complete payment of the above bond funds with the sales fund, and it is entirely different from the form of PEF’s acquisition of PEF’s equity interest in PEFF’s PEFF’s PEFF’s 300s.

(b) false disclosure of the development of Indonesia gold mine;

Of the Plaintiff’s report on July 20, 201, it is similar to the instant measure that made a false disclosure that it would contribute to KRW 12.3 billion in Indonese Development. However, the said report was made after opseng was delisting. At the time of the report, the Defendant had already been engaged in planning and investigation on opseng. In addition, the purport of the report was to make a false disclosure of gold mine development and to make a false disclosure of the sales price of the site site for opseng, and to make an overseas deduction of the sales price of the site for opseng, and the fact that it was revealed as a result of the instant measure is a big difference since it made a public announcement of the fact that the acquisition price of shares in ST. Support Eergymania was also made a partial withdrawal.

(C) Nonparty 2

The Plaintiff asserts that, if Nonparty 2 reported by himself was the mother of Nonparty 1, one of the persons who violated the prohibition against unfair trading of the instant measure, the Plaintiff could prevent the delisting of ESSF. However, the Plaintiff’s report that Nonparty 2 obtained market price gains by selling the preemptive rights of ESSF, it is difficult to view that Nonparty 2 committed unfair trading under any Act, by itself, it is difficult to deem that Nonparty 2 was engaged in unfair trading under any Act.

(D) Nonparty 15 (F)-B)

Of the details of the Plaintiff’s report, Nonparty 15, which was found to have been a bond company that lent funds from the instant measure, includes Nonparty 15. However, even in light of the Plaintiff’s report, Nonparty 15 did not have any specific details as to whether Nonparty 15 was appointed to outside directors of IMN and was changed as the representative director of YND, and it did not have any common interest other than that in which the instant measure and the appearing figures coincide with, and did not have been helpful to the instant measure.

(3) The purpose of this Act is to revitalize sound surveillance activities in the capital market by compensating for acts that contributed to the detection of or measures against reporting illegal acts, such as unfair trade practices, thereby contributing to the development of the national economy by facilitating the distribution of securities through fair issuance, sale, and other transactions, and by protecting investors.

In addition, Article 34(1)2 of the Monetary Rewards Regulations requires a statement of specific violations to specify unfair trade practices, such as violator, place, date, and method, etc. when reporting unfair trade practices. Article 35(2)5 of the Monetary Rewards provides that where a report is filed based on the information widely known by public disclosure data or a rumor and no new fact or evidence exists, treatment may be terminated without deliberation. This is the following: (a) if the reported content merely concerns the possibility of unfair trade practices; (b) it is difficult for the defendant to find unfair trade practices on the basis thereof; and (c) if such a report is received by multiple persons, it is difficult for the defendant to detect such unfair trade practices; and (d) if it is received, it is difficult to detect and take measures against the unfair trade practices.

However, it seems difficult for the Defendant to easily find unfair trade practices on the grounds of the Plaintiff’s report, because the Plaintiff’s report only contains a majority of the disclosed facts, and it does not specifically identify what constitutes unfair trade practices under the Act. On the other hand, the Plaintiff’s report of anonymous informants, which was the opportunity to take the instant measure, specifically stated the fact that ordinary investors have experienced directly from 3 equipped courses, submits a recording file and the name and contact point of the suspect as evidentiary materials, and is subject to unfair trade practices listed in each subparagraph of Article 37(1) of the Monetary Rewards Regulations.

(4) On February 11, 2011, the Defendant’s instant measure was taken in accordance with the results of planning and investigation conducted on the basis of the results of requesting a review on whether or not there was unfair trade in the ASEAN stocks on March 8, 2011 after having been informed of the suspicion of unfair trade from anonymous reporters, who are not the Plaintiff, and requesting a review to the Korea Exchange on whether or not there was unfair trade in the ASEAN stocks, and thus the Plaintiff

(5) As seen earlier, the Plaintiff’s report goes against the reporting method required under Article 34(1)1 of the Monetary Rewards Regulations because it is not related to unfair trade practices, and the Defendant is able to terminate the Plaintiff’s report without examining or examining the Plaintiff’s report pursuant to Article 35(2)5 of the Monetary Rewards Regulations and Article 35(2)5 of the Monetary Rewards Regulations, and thus, it is difficult to view the Plaintiff’s report that the Defendant was not investigating

D) Sub-determination

Therefore, the plaintiff does not report unfair trade practices under each subparagraph of Article 37 of the Monetary Rewards Regulation, but it is not recognized that it was helpful to detect such unfair trade practices or to take measures accordingly, so the plaintiff does not fall under the subject of monetary rewards.

4. Conclusion

Therefore, the plaintiff's claim shall be dismissed as it is without merit. Since the judgment of the court of first instance is unfair with different conclusions, the defendant's appeal is accepted, and the judgment of the court of first instance is revoked, and the plaintiff's claim is dismissed as per Disposition.

[Attachment]

Judges Lee Jung-Jon (Presiding Judge)