Defendant 1 and four others

Defendant 1 and three others and the Prosecutor

Jink

Attorney Park Ho-ho et al.

Seoul Central District Court Decision 2005Gohap238 (Separation-1), 286, 413 (Joint), 432 (Joint), 449 (Joint), 569 (Joint), 602 (Joint), 696 (Joint), 698 (Joint), 733 (Joint), 934 (Joint), 934 (Joint) Decided October 28, 2005

Of the judgment of the court below, the guilty part against the defendant 1, 4, and 3, the violation of the Securities and Exchange Act due to the manipulation of stock prices on the shares held by the defendant 1, the violation of the Securities and Exchange Act against the defendant 2, the violation of the Commercial Act, the violation of the Commercial Act, the non-entry in the original of the notarial deed, and the non-

Defendant 1 is punished by imprisonment for six years, by a fine of 5,00,000 won, by imprisonment for two years, and by imprisonment for one year, respectively.

When Defendant 2 fails to pay the above fine, the above Defendant shall be confined in a workhouse for the period calculated by converting 50,000 won into one day.

The number of detention days prior to the pronouncement of the judgment below shall be 231 days per defendant 1, and 181 days shall be included in the above punishment against defendant 4.

However, with respect to the defendant 3, the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.

Defendant 2 shall be ordered to pay the amount equivalent to the above fine.

Defendant 5’s appeal, prosecutor’s appeal against Defendant 1, except for the violation of the Securities and Exchange Act due to the manipulation of market prices on the shares of the company, the remainder of acquittal, the dismissal of prosecution (the violation of the Punishment of Tax Evaders Act) and the appeal against Defendant 4,

1. Scope of the deliberation of the political party;

Of the judgment below, only the remaining defendants except the defendant 2 file an appeal against the guilty portion, and only the prosecutor appealed against the defendant 1, 2, and 4, and the prosecutor appealed against the dismissed portion only for the violation of the Punishment of Tax Evaders Act against the defendant 1. As such, the part against the defendant 1, 4, 3, and 5 among the convicted portion of the judgment below, the part against the defendant 1, 2, and 4 among the acquitted portion, and the part against the violation of the Punishment of Tax Evaders Act against the defendant 1 among the dismissed portion shall be subject to the judgment of the court below

2. Summary of grounds for appeal;

A. Defendant 1

(1) The violation of the Securities and Exchange Act, No. 1-A, F. H.

Article 8 of the Securities and Exchange Act provides that the issuer of securities shall be obligated to report to the Financial Supervisory Commission if the public offering price of new stocks or the selling price of securities is more than a certain size. Thus, the type, number, issue price, and the purpose of raising funds stated in the instant securities registration statement was the same, and even if there was no intent or purpose to actually raise funds by offering new stocks through the method of fictitious payment, the above obligation to report is to be fulfilled. However, the court below erred by misapprehending the legal principles on the violation of the Securities and Exchange Act due to false entries in each securities registration statement, thereby adversely affecting the conclusion of the judgment.

(2) The first-C. Violation of the Securities and Exchange Act

On May 13, 2003, the Defendant publicly announced the 1.5 billion won “pro rata Investment Scheme (hereinafter “Agregator”) as Agregator Co., Ltd. (hereinafter “Agregator”) on May 13, 2003. Even if an actual contribution was not made on May 13, 2003, it was true that the Defendant was scheduled to make an investment at the time of the said public announcement. However, the lower court erred by misapprehending the fact that the Defendant publicly notified the amount of KRW 1.5 billion, thereby adversely affecting the conclusion of the judgment.

(3) Violation of the Securities and Exchange Act, No. 1-D.

Around April 2003, the Defendant introduced Nonindicted 9 of Agmanman’s representative director of Agmanman’s office from gambling, reported the electric vehicle model, and provided support to KRW 10 billion, and actually provided KRW 6400 million. In order to manufacture electric vehicles, the Defendant purchased the factory site 5500 square meters owned by Egypt and paid KRW 1.4 billion as down payment and intermediate payment. The manufacturing factory was built by Egyptian, a seller, at the time of the new construction of a new construction of the factory building. At the time of the advertisement, the Defendant was able to manufacture the electric vehicle model until August 2003, and was planned as originally, but it was impossible to manufacture the electric vehicle model at the cost of production, and did not have the intention of initial false advertisement. However, the lower court, as stated in its reasoning, found that the Defendant intentionally committed an unlawful act in collusion with Nonindicted 9 and caused the lower judgment to have known the fact that it had caused the error in the judgment.

(4) Article 1-5(5) of the Securities and Exchange Act

피고인은 2003. 7. 중순경 주식회사 바리죤(이하 ‘바리죤’이라 한다)의 대표이사 김규영과 사이에 생분해성 1회용 용기사업을 하기로 구두계약을 체결하고, 2003. 8. 25. 바리죤의 자회사인 주식회사 바리죤텍그린(이하 ‘바리죤텍그린’이라 한다)은 충남 부여군 조촌면 75-11 소재 공장을, 바리죤은 택그린 용기 제작기계 및 관련 설비를 공소외 1 주식회사에 매도하는 내용의 매매계약서를 작성하였으며, 바리죤이 텍그린용기 제조관련 전용실시권을 공소외 1 주식회사(이하 ‘ 공소외 1 회사’라 한다)에 부여하고, 바리죤텍그린에서 텍그린 용기를 생산, 판매하고 있었으며, 텍그린 용기 제작기계와 부여공장을 인도받았으므로 공소외 1 회사로서는 원재료(펠렛)만 납품을 받으면 바로 텍그린 용기를 제작할 수 있었으나, 중국에서 들여와야 하는 원재료의 공급계약이 제대로 이루어지지 아니하여 결과적으로 생산을 하지 못하였을 뿐, 비록 다소 과장되기는 하였으나 무공해 일회용 용기 사업 광고는 허위가 아닌데도, 원심은, 피고인이 상피고인 4와 공모하여 원심 판시와 같이 6회에 걸쳐 광고를 게재하여 고의로 허위사실을 유포하였다고 인정함으로써 사실을 오인하여 판결에 영향을 미친 위법을 범하였다.

(5) Article 1 of the judgment of the court below

On October 2003, the Defendant came to know that the capital increase was carried out by the method of fictitious payment, such as the first capital increase (hereinafter “the first capital increase”) and the second capital increase (hereinafter “the second capital increase”) implemented around April 11, 2003. To this end, the Defendant paid 540 million won interest to the new director who introduced Kim tin as the first capital increase to the 1.8 billion capital increase, but in fact, the registration of capital increase was completed by forgery of the certificate of the capital increase. However, the subjective constituent elements of the establishment of the crime must have the awareness of the constituent act. Thus, the Defendant cannot be held liable for the registration of the capital increase conducted by the method of the above Article, which is the custody certificate of the capital increase. However, the lower court erred by misapprehending the legal doctrine as to the intention to use the original notarial deed in collusion with the Defendant 4, thereby affecting the conclusion of the judgment.

(6) Violation of the Securities and Exchange Act, 1-j. (1) (b), (c) and (2) of the judgment of the court below

In light of the above legal principles, the defendant was aware that he was the same person as the non-indicted 10 who was involved in the manipulation of the market price of this case on October 27, 2003, and there was a sale of 18,140,300 shares out of the non-indicted 1's shares by using ten borrowed accounts around October 27, 2003, as stated in the judgment of the court below, and there was no conspiracy to operate the market price of the non-indicted 1 in the manner as stated in the judgment of the court below with the non-indicted 10, 11, and the defendant 4, or there was no participation in it. However, the court below erred in the judgment by misunderstanding that the defendant conspired with the above defendant 4, etc. for the purpose of inducing the sale and purchase, and that the non-indicted 1's share purchase or order was a false purchase or sale with the intention of leading another person to make a false judgment, or by causing another person to do so, and thereby affecting the conclusion of the judgment.

(7) Article 4 of the judgment of the court below. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation)

The value of shares and claims in Nonindicted Co. 1’s non-indicted 5 Company (hereinafter “non-indicted 5 Company”) that the Defendant transferred to Defendant 3, is an amount set at will by the Defendant and the upper-tier Defendant 3 to adjust their respective claims and obligations, and cannot be deemed an objective appraised value of the above shares and claims. However, without any evidence, the lower court erred by misapprehending the facts by recognizing the value of shares and claims as KRW 1.31 billion, or by misapprehending the legal doctrine on the calculation of the amount of profit in the crime of violating the Act on the Aggravated Punishment, etc. of Specific Crimes (Misappropriation) and thereby adversely affecting the conclusion of the judgment.

(8) Article 4-2 of the Securities and Exchange Act

The defendant also received the offer from Nonindicted 12 and received an expensive purchase order as stated in the judgment of the court below. However, although the defendant conspired with Nonindicted 12, etc. and did not manipulate the share price of the Gyeonggi Chemical Industry Co., Ltd. (hereinafter “KGKK”) and there is no evidence to acknowledge it, the court below erred by misunderstanding the fact that the defendant conspired with Nonindicted 12 for the purpose of soliciting the sale and purchase transaction on the securities market, thereby causing a change in the market price as stated in its reasoning, thereby adversely affecting the conclusion of the judgment.

(9) Decision 6-A. Violation of the Illegal Check Control Act

The check number table (No. 0052261) of the judgment of the court below is merely a non-payment refusal by the representative director of Ysan department store, non-indicted 2, who requested the suspension of payment on December 24, 2003 due to the alteration of check on December 24, 2003, and the payment refusal was not made due to the shortage of deposit, but the court below erred by misunderstanding the fact that the defendant was not paid the above check number due to the shortage of deposit, which affected the conclusion of the judgment.

(10) 8-B. (1) Fraud in the holding of the court below

The Defendant did not know the victim Lee Sung-deok and requested Park Jae-in, a credit service provider, to discount a promissory note of Nonindicted Company 1, and thus, the victim of the bill discount is Park Jae-il, the discount of the bill discount. However, the lower court erred by misapprehending the fact that the victim of the bill discount of this case was the sexual virtue, thereby adversely affecting the conclusion of the judgment.

(11) 8-B. (2) Fraud in the holding of the court below

On December 16, 2003, the Defendant asked to lend KRW 178 million to the new type of money to the new type of money through the dong border through the party shares table and the promissory note in the issuance of the non-indicted 1 Company as security. In fact, the new type of money was delivered to the Defendant through the dong border on behalf of the Defendant, and the KRW 150 million was directly remitted to the Defendant, so the victim of the crime of defraudation of the money in this case is the new type of money, and the lower court, even though it was recognized that the victim of the crime of defraudation of the money in this case was the fluenite, thereby affecting the conclusion of the judgment.

(12) Unreasonable sentencing

In light of the various sentencing conditions of this case, the sentence imposed by the court below is too unreasonable.

B. Defendant 4

(1) 1-A. Violation of the Securities and Exchange Act and 1-B. Violation of the Commercial Act, etc.

The first capital increase by Nonindicted Company 1 was planned, led and executed by Nonindicted 4 and 13, and the Defendant was unaware of the procedure or method of the best payment at the time, and thus, the Defendant did not commit the above crimes in collusion with the Defendant 1. However, the lower court erred by misapprehending the fact that the Defendant conspired with the Defendant 1, etc. to make a false statement on the material facts of the securities registration statement, making the Defendant make a false statement on the material facts of the securities registration statement, making the best payment of the share price and enter false facts in the commercial register by making the registration of capital increase by means of the best payment, and by recognizing that he exercised it, thereby adversely affecting the conclusion of the judgment.

(2) The first-C. Violation of the Securities and Exchange Act

① The publication of the investment in Aminz is made by Defendant 1 and Nonindicted 14 to increase the share price of Nonindicted Company 1 through the manipulation of the shares of Nonindicted Company 1. The practical act, such as the publication, was conducted by Nonindicted 4, and the Defendant was in charge in accordance with the order of Defendant 1, and the Defendant did not hold the shares of Nonindicted Company 1 at the time, and thus, the Defendant did not commit the above crime in collusion with Defendant 1, etc., and thus, the Defendant did not commit the above crime. ② On the date of the above publication, Nonindicted Company 1 entered into a contract with Defendant 1 to acquire all rights, such as the Aminzz shares and the management rights owned by Nonindicted Company 9, and concluded a contract with Defendant 1 to acquire KRW 1.50 million. On the date of the above publication, Defendant 1 believed and announced that Defendant 1 paid KRW 600 million to Nonindicted Company 9 and thus, the Defendant believed that the contents of the above publication were false, and thus, the lower court erred and adversely affected the conclusion of the judgment.

(3) Violation of the Securities and Exchange Act

The advertisement of Nonindicted Co. 1’s non-indicted 1’s entry into a container business for non-indicted 1 was made in Seoul by ordering the non-indicted 2, who is the president of the next Busan department store. The Defendant was working in a safe factory at the time, and thus did not participate in the above advertisement, and there was only the approval of the issuance of a promissory note for the payment of advertising expenses according to the order of the above defendant 1 around September 2003, after the advertisement was made. However, the court below erred by misunderstanding the fact that the Defendant intentionally posted false facts by inserting the advertisement six times in collusion with the above defendant 1, and thereby affecting the conclusion of the judgment.

(4) The violation of the Securities and Exchange Act, No. 1-g., (i) the violation of the Commercial Act, and the false entry and use of the authentic copy of the authentic deed.

In both the two and three capital increase shares of Nonindicted Company 1 and Nonindicted Company 1, at the order of Defendant 1, Nonindicted 4 executed the preparation of documents and reports, and the Defendant merely conducted documents in collusion with Defendant 1, etc., and did not commit each of the above crimes in collusion with Defendant 1. However, the lower court erred by misapprehending the fact that the Defendant, in collusion with Defendant 1, etc., made a false statement on the material facts of the securities registration statement, and made it enter false facts in the commercial register by pretending the payment of the stock price or using the certificate of storage of the forged stock price, etc. by making a false registration of the capital increase by means of fictitious payment, or by using the certificate of custody of the forged stock price.

(5) Article 4 of the judgment of the court below. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation)

In order for the above defendant 3 to recover his personal debt against the above defendant 1, he threatened the above defendant 1, and he ordered the defendant 1 to transfer his share and claim against the non-indicted 5 to the above defendant 3. This is merely a threat by the above defendant 3 to force the defendant 1 to force the above defendant 1 to transfer his share and claim against the non-indicted 1, and it cannot be punished for the crime of breach of trust because it is not transferred according to normal procedure. However, the court below erred in the misapprehension of legal principles as to the joint principal offense of breach of trust, which affected the conclusion of the judgment.

(6) Unreasonable sentencing

In light of the various sentencing conditions of this case, the sentence imposed by the court below is too unreasonable.

C. Defendant 3

(1) Article 4 of the judgment of the court below. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation)

(A) Whether the defendant 1, 4, and 2 was in breach of trust

Defendant 1’s acquisition of Nonindicted Co. 1’s shares and actual ownership of Nonindicted Co. 1, thereby holding Nonindicted Co. 5 through Nonindicted Co. 1. Thus, even if it was for the repayment of his personal obligation, the transfer of shares to Nonindicted Co. 1’s Nonindicted Co. 5’s shares to Nonindicted Co. 1 cannot be an illegal breach of trust, and the foregoing transfer did not undergo a resolution or public disclosure procedure at the general meeting of shareholders of Nonindicted Co. 1.

(B) Whether the defendant took part in the defendant's breach of trust

1) The Defendant did not know that Defendant 1 et al. tried to sell without a resolution or public disclosure procedure of the general meeting of shareholders. Since he did not know it, he cannot become a joint principal offender of breach of trust.

2) The Defendant had a claim of KRW 2.982 billion against Defendant 1, and the Defendant’s assertion that he/she would file a criminal complaint to recover the claim cannot be the end of the illegal act of breach of trust.

(C) Whether the act of breach of trust resulted in damage

Defendant 1’s failure to deposit KRW 1.31 billion, which is a consideration for the transfer of shares and bonds, in Nonindicted Company 1, thereby indirectly causing damage to Nonindicted Company 1. The share purchase itself does not directly cause damage to Nonindicted Company 1. Since Defendant 1 is the actual owner of Nonindicted Company 1, it is a major shareholder of Nonindicted Company 1, it cannot be deemed that Defendant 1 incurred damage to Nonindicted Company 1 even if he transferred the shares and bonds to Nonindicted Company 5 to the Defendant.

(d) Calculation of the amount of profit;

Since the defendant purchased a factory of KRW 400 million or KRW 500 million which belongs to the above defendant 1 at the market price of KRW 1.31 billion, the above amount shall not be deemed to be the amount of damage. The appraisal of the property value as decided by the court below is based on the premise that the normal sale price has been determined by the agreement of the parties, so it cannot be applied to this case.

(E) Nevertheless, the lower court erred by misapprehending the facts or by misapprehending the legal doctrine on joint principal offense of breach of trust, etc., thereby adversely affecting the conclusion of the judgment, by recognizing that the Defendant actively participated in the act of breach of trust by Defendant 1, etc. and thereby inflicted damage on Nonindicted Company 1 by acquiring the above shares, etc. from Defendant 1.

(2) Unreasonable sentencing

In light of the various sentencing conditions of this case, the sentence imposed by the court below is too unreasonable.

D. Defendant 5

(1) Violation of the Securities and Exchange Act, No. 7-1 (1) and (2) of the judgment of the court below

Defendant 1 provided that Defendant 1 would not accept the same as the lower limit (1,000 won, which is 20% of face value) of his own stocks of Dong (hereinafter “Dong”) for more than 10 days, and that he would not accept the same as the lower limit (1,000 won, which is 20% of face value). As such, Nonindicted 15 again entrusted Nonindicted 15, who is the investment counselor for the name-dong branch of ELD Securities, again entrusted Nonindicted 15, to maintain the share price, and did not directly purchase orders as indicated in the facts charged, and the Defendant did not conspired with Defendant 1 or actually purchase orders. Nonindicted 15, as the principal agent of the stock transaction, did not make a high-priced purchase orders or paper purchase orders for the purpose of inducing the purchase on the securities market. However, the lower court, in collusion with Defendant 1, as indicated in its reasoning, did not err by misapprehending the legal doctrine on each of the changes in the market prices, thereby misunderstanding or affecting the conclusion of the judgment.

(2) Unreasonable sentencing

In light of the various sentencing conditions of this case, the sentence imposed by the court below is too unreasonable.

(e) A prosecutor;

(1) As to Defendant 1

(A) The violation of each Securities and Exchange Act (not guilty part) due to the violation of the market price manipulation of the new stocks, the obligation to report changes in stocks held in bulk, and

The defendant acquired the same credit on condition that he holds not less than 28% of the shares issued by the same credit, and it was also generated in the process of meeting the above condition that the transaction was conducted with a view to inducing the above transaction. Therefore, the above shares shall be deemed to be owned by the defendant.

In light of the fact that the defendant made a statement at an investigative agency and the court below to the effect that he made a confession of the conspiracy with the defendant 5 on the above market price manipulation, the provision of the market price manipulation fund was caused by the fact that the new acceptance was unnecessary at the time of delisting, and the defendant also operated the market price of the above new shares in collusion with the defendant 5, and further, it may be recognized that the defendant failed to perform his duty to report on possession and change as a substantial holder of the above shares. However, the court below rejected the statement made by the defendant 5 on the reliable and acquitted the defendant on the ground that there is no evidence to prove the above facts charged, thereby affecting the conclusion of the judgment.

(B) Violation of each Punishment of Tax Evaders Act (Dismissal of Public Prosecution) in the holding of the court below

According to the list of the total tax invoices submitted by the prosecutor, even if the purchase and sales amount are not specified by each tax invoice, there is no problem in the specification of the object to be tried since the purchase, the total amount of output tax, and the date of publication are specified, and there is no difficulty in exercising the right of defense because the defendant clearly recognizes the content of his crime and makes confession.

With the revision of the Value-Added Tax Act in 195, only a list of total tax invoices stating the purchase of tax invoices and their total amount in lieu of the return of value-added tax by the entrepreneur is submitted. Even if the National Tax Service or the tax office does not secure the tax invoices, demanding the specification of the facts charged according to the tax invoice not only is consistent with the current tax practice, but also requires the investigation agency to specify the facts charged by the method of

Therefore, even though the facts charged are deemed to have been specified, the court below erred by misapprehending the legal principles on the specification of the facts charged by dismissing this part of the indictment, thereby adversely affecting the conclusion of the judgment.

(2) The false entry of important matters in the securities registration statement against Defendant 2, the fact that the payment for the stock price is the largest, and the fact that the false entry and use of the original of the notarial deed (not guilty part)

The court below acknowledged the fact that the defendant was the representative director of the non-indicted 1 at the time of the first capital increase, and consented to the registration of the name of the defendant in the list of the third party to the capital increase with the capital increase, and that the defendant was accompanied by the above defendant 1, etc. who led the crime of this case to the payment bank for the capital increase, and that the defendant did not prepare the capital increase, even though the above facts alone, it can be seen that although the defendant did not prepare the capital increase, the defendant's act of the capital increase with the above defendant 1 as the representative director of the non-indicted 1, as a joint will with the above defendant 1, it can be viewed that he had moved to the execution of his own will as a whole, and it can be found that the above facts charged are recognized if the defendant did not appear to have been aware of the fact that there was no evidence to acknowledge the above facts charged, and therefore, the court below erred by misunderstanding the facts

(3) As to Defendant 4

(A) Violation of the Securities and Exchange Act due to the false fact-finding for the purpose of manipulation (not guilty part)

The defendant was in charge of the overall business of the company as the vice president of the non-indicted 1 and was aware of the fact that the above advertisement took place. Non-indicted 9 did not have any position at the time of the non-indicted 1, and this case committed the crime with the intention to prevent the counter-party 1's shares offered as security or to increase the market price of the non-indicted 1's shares held by him. The court below found the defendant guilty of the non-indicted 1's false investment disclosure for the same purpose, and the court below found the defendant guilty of the non-indicted 1's false investment disclosure for the same purpose, and if the non-indicted 1's statement was found in the investigation agency of the defendant 1's above, it can be recognized that the defendant spread false facts in collusion with the defendant 1 for the purpose of manipulation. However, the court below erred by misapprehending the facts by acquitted the defendant on the grounds that there is no evidence to prove the facts charged.

(B) Violation of the Control of Illegal Check Control Act (not guilty part) in the judgment of the court below

In light of the fact that Defendant and Defendant 1 comprehensively have an organic relationship with the entire case, and Defendant 2 also stated to the effect that Defendant or Defendant 1 was deemed to have issued the above check number, it may be recognized that Defendant, in collusion with Defendant 1 and Defendant 2, did not receive deposits due to the shortage of deposits by issuing a sum of KRW 4 and KRW 1190 million in face value as shown in the annexed Table 11 of the judgment of the court below, as shown in the annexed Table 11 of the court below. However, the court below erred by misapprehending the facts and adversely affecting the conclusion of the judgment by acquitted Defendant on the grounds that there is no evidence to prove the facts charged.

3. Determination and ex officio determination on the grounds for appeal

A. 1-A. F. H. Violation of the Securities and Exchange Act, No. 1-b. g. Violation of the Commercial Act, No. 1-B. 1 of the judgment of the court below

(1) As to Defendant 1’s assertion of misapprehension of the legal principles as to Defendant 1’s non-a, (f), (h), violation of the Securities and Exchange Act, and (1) violation of the Securities and Exchange Act

Article 8 of the Securities and Exchange Act provides that an issuer of securities shall report matters prescribed by the Presidential Decree to the Financial Supervisory Commission when the public offering price or sale price of securities is more than a certain size. This requires an investor to fully disclose all information that may affect the price of securities at the stage of issuing securities in order to protect investors and ensure soundness and transparency of the securities market. Thus, the interpretation of the above provision should be strictly interpreted in consideration of its legislative intent.

In a case where the issuance of securities through capital increase was made by depositing the company's funds in the account for temporary capital increase, and then withdrawing the shares immediately after the registration of the capital increase was made with a certificate of custody of the shares paid in advance, or where the registration of capital increase was made by submitting a false certificate of custody of shares paid in advance even though it was not made, even if it was in form the appearance of the capital increase, it is not entirely included in the capital increase because there was no intent or purpose to raise the funds, and thus, if it was prepared and submitted to the Financial Supervisory Commission as if it was made by the actual financing of the shares, it shall be deemed that the report of securities was made with false entries as to the important matters of the report of the capital increase.

As examined below, the Defendant had no intent or purpose to raise funds in the implementation of Nonindicted Company 1’s capital increase for three occasions, and the registration of capital increase was made by means of the fictitious payment for the 1,2nd capital increase for the 3rd capital increase. Although the Defendant intended to implement the 3rd capital increase for the 3rd capital increase, the registration of capital increase has been made by means of forging the certificate of storage of capital increase for the 3rd capital increase for the 1,00 capital increase. Thus, the Defendant cannot be exempt from the liability to make a false statement on the important matters of

Therefore, the judgment of the court below to the same purport is just, and there is no error of law that affected the conclusion of the judgment by misapprehending the legal principles on the violation of the Securities and Exchange Act due to false entries

In addition, since the crime of false entry in the original copy of a notarial deed is established by making a false report to a public official and making the public official enter the facts contrary to the truth, the establishment of the crime of false entry in the original copy of a notarial deed in relation to the registration of capital increase and the total amount of capital increase is false, it is not sufficient if there is a perception that the total number of issued shares and the total amount of capital increase are false, and it is not necessary to recognize whether the certificate of the custody of capital shares submitted as the registration application document is true or forged or not. Therefore, since there was an intention for the defendant to make the registration by the method of the disguised payment of capital increase at the time of the 3th new capital increase,

In the end, the appeal of the defendant is without merit.

(2) As to Defendant 4’s misunderstanding of facts as to violation of the Securities and Exchange Act and Article 1-2 of the Securities and Exchange Act; Defendant 2’s misunderstanding of facts as to violation of the Commercial Act; Defendant 2’s misunderstanding of facts as to violation of the Securities and Exchange Act; Defendant 4’s misunderstanding of facts as to the false entry of important matters in the securities registration statement as to

(A) Summary of the facts charged

1) Defendant 2 and 4 conspired with Defendant 4 (hereinafter referred to as “Nonindicted 4”) joint Defendant 4 and Nonindicted 13 (hereinafter referred to as “Nonindicted 13”) joint Defendant 1, who was an outside director of Nonindicted Company 1, jointly with the lower court, who was the auditor of Defendant 1 and Nonindicted 1.

Around March 2003, Nonindicted Company 1 offered the first capital increase in the amount equivalent to 6,189,97,000 won by the third party allotment method. A false statement is made with respect to material facts in a securities registration statement stating that “The first capital increase in the form of new shares and number (1,125,454 shares common to registered common), the issue price of new shares (5,500 won), the purpose of the financing, 6,154,97,000 won for operating the financing purpose, or any other 35,000 won, or 35,000,000 won after making the registration of the capital increase, without any intention or purpose of financing.”

2) Defendant 1 and 4 in collusion with Nonindicted 4, 13, and 14:

A) Around April 11, 2003, when offering the first capital increase with capital increase, Nonindicted 14 funds of KRW 2.88 billion and KRW 300 million were deposited in the stock payment account of Nonindicted 1 Company established at the regular Dodong branch of the Agricultural Cooperatives Federation at the same time, and the said bank received a certificate of deposit of the stock price from the said bank and received a certificate of deposit of the stock price from the said bank for the completion of the registration of the capital increase, and pretended to make the payment of the stock price by withdrawing it in full and returning it to Nonindicted 14, etc. on April 14, 2003;

B) On the same day, the above temporary border and the Suwon District Court: (a) submitted documents related to the registration of capital increase with consideration, such as the “certificate of capital increase”, to a registered official who is unaware of the fact that there was no change in the number of the shares of Nonindicted Company 1 and the total amount of capital, and (b) made the above registered official enter false facts in the above commercial register, which is the authentic copy, on the same day; and (c) had the said registered official keep the said commercial register at the same place, and exercised it by allowing the said registered official to keep the said commercial register, which includes false facts as above.

(B) Defendant 2 and 4’s legal proceedings and the judgment of the court below

Defendant 2 asserted that he did not know of the initial capital increase with respect to the first capital increase, since he was decided by the board of directors under the initiative of the former representative director on March 18, 2003, before the defendant was appointed as the representative director. Defendant 4 asserted that he did not know that the first capital increase with respect to the capital increase with respect to the capital increase with respect to the capital increase with respect to the capital increase with respect to the capital increase with respect to the capital

The court below found Defendant 4 guilty of only KRW 5,99,99,50 of the first capital increase shares of KRW 6,189,97,00 among the above facts charged, and found Defendant 2 not guilty of the remaining KRW 189,99,97,50 on the ground that the stock price was actually paid. However, the court below found Defendant 2 not guilty of the whole of the evidence as stated in the above facts charged on the ground that the above facts charged were not reliable and there is no other evidence to acknowledge it.

(C) Judgment of the court below

1) First, we examine whether the total amount of KRW 6,189,997,00 for the first capital increase with capital increase has been the best paid.

According to the evidence duly examined and adopted by the court below, with respect to the first capital increase of KRW 6,189,97,99,99,500 out of KRW 5,000 of KRW 6,189,97,00, KRW 599,500, KRW 1400, KRW 2880,000, KRW 300,000, KRW 300,000 of KRW 5,000, KRW 1428,80, KRW 300,00 of KRW 5,00 was deposited into the account for the payment of KRW 30,00 of KRW 30,00 of KRW 14,00, KRW 189,97, and KRW 50,00, KRW 14,000 of KRW 14,00, KRW 5,000, KRW 305,00 of KRW 14,00 of the capital increase.

2) Next, we examine whether Defendants 2 and 4 actively participated in each of the above crimes.

원심이 적법하게 조사·채택한 여러 증거들에 의하여 인정되는 다음과 같은 사정들 즉, ① 상피고인 1이 공소외 1 회사를 인수할 당시 공소외 1 회사는 재무제표상 당기 순이익이 1998년(22기) -3,253,153,000원, 1999년(23기) -4,737,338,000원, 2000년(24기) -1,417,405,000원, 2001년(25기) -982,486,000원, 2002년(26기) -160,139,000원으로 계속 적자상태였고, 이로 인하여 공소외 1 회사 약속어음은 제도권 금융기관에서는 어음할인이 거의 불가능하였던 점, ② 피고인 4는 상피고인 1이 공소외 1 회사를 인수하기 이전에 위 상피고인의 지시로 공소외 1 회사를 실사하여 이러한 공소외 1 회사의 자금사정을 잘 알고 있었던 것으로 보이는 점, 한편 피고인 2는 금융감독원에서 “2003. 2. 말에서 3. 초 서울벤처베이스를 통하여 피고인 1회장이 공소외 1 회사를 인수한다고 하시면서 본인에게 자금은 자신이 만들테니 인수하라고 하여 본인이 서울벤쳐베이스의 공소외 7 부사장과 공소외 1 회사측 김실장과 우리측에는 피고인 1 회장, 본인, 공소외 4, 공소외 13이 인수작업을 하였다”라고 진술한 적이 있는 점(서울중앙지방검찰청 2004형제13786호 등 수사기록 1권 579쪽), ③ 공소외 4, 공소외 13은 상피고인 1에게 ‘ 공소외 1 회사 무자본 인수합병, 인수후 가장납입 구도’를 제의하였고( 피고인 1, 4의 원심에서 한 각 일부 법정 진술), 상피고인 1이 이를 승낙하여 공소외 1 회사 인수자금 및 운영자금을 확보하기 위하여 공소외 1 회사를 인수하기 이전부터 공소외 1 회사 매도인측(한원그룹)에 대하여 1차 유상증자를 위한 이사회 결의를 요구하였는데, 당시 공소외 1 회사의 자본금은 73억 원에 불과하였고, 특별한 투자요인도 없었으며, 앞에서 본 바와 같이 5년 연속 적자 상태에서 공소외 1 회사에 투자할 투자자를 물색하기가 쉽지 않아 보임에도 불구하고, 1차 유상증자 규모를 6,189,997,000원의 거액으로 정한 점, ④ 상피고인 1은 검찰에서 “ 공소외 4가 최초로 주금 납입가장을 제의하였고 하루 내지 이틀 후에 피고인 2도 알았으며, 피고인 4, 2를 불러서 무자본 인수합병, 가장납입 구도를 검토하라고 지시하였다”라고 진술한 적이 있는 점(위 수사기록 3권 2076쪽, 2077쪽), ⑤ 피고인 2는 2003. 3. 21.경부터 2003. 6. 9.경까지 공소외 1 회사 대표이사로 재직하였는데, 공소외 1 회사 이사회는 2003. 3. 31. 피고인 2의 대표이사 결재사항 및 대표이사 직무사항 일체를 2003. 4. 1.부터 피고인 4에게 위임하는 내용의 결의를 하였고, 이에 따라 피고인 4는 대표이사인 피고인 2를 대신하여 사실상 공소외 1 회사 대표이사로서의 직무를 수행한 점(서울중앙지방검찰청 2005형제51217호 등 수사기록 6권 2461, 2462쪽), ⑥ 1차 유상증자 제3자 배정자 명단에 피고인 2의 이름이 등재되어 있었고 55,000주가 배정되었으나 피고인 2에게는 주금납입의 의사나 능력이 없었고, 실제로도 주금을 납입하지 아니한 점, ⑦ 1차 유상증자와 관련하여, 피고인 2, 4는 2003. 4. 11.(1차 유상증자 당일) 주금납입은행인 농협중앙회 상도동지점에서, 상피고인 1, 공소외 4, 공소외 13과 함께 사채업자 장문석 등을 만났고, 피고인 2는 그곳에서 예금계좌를 개설하고 예금통장을 피고인 4에게 주었으며(지점장 천우영은 피고인 2가 13명의 위임장 등과 자금을 가지고 왔다고 진술하였다. 서울중앙지방검찰청 2004형제13786호 등 수사기록 1권 694쪽), 피고인 4는 상피고인 1의 지시로 공소외 4의 1차 유상증자 유가증권신고서 작성 및 제출, 금융감독위원회에 대한 공시 등 업무를 도와주고, 서류 준비작업 등을 하였으며, 1차 유상증자 제3자 배정자 명단에 실제 주금을 납입할 의사가 없는 이유중 명의가 등재되도록 한 점(피고인 4의 원심 법정에서의 일부 진술, 같은 수사기록 6권 2369쪽), ⑧ 피고인 2는 검찰에서 “상피의자 피고인 4가 그 날(1차 유상증자일) 그 자리에서(위 주금납입은행) 상피의자 피고인 1이 사채업자를 동원해서 주금을 납입한다고 했었다는 말을 하였다”라고 진술한 적이 있는 점(서울중앙지방검찰청 2004형제13786호 등 수사기록 2권 937쪽), ⑨ 공소외 1 회사는 위와 같이 계속 적자상태였고, 그 자본금도 73억 원에 불과하였으며 공소외 1 회사 발행의 어음의 할인도 쉽지 않은 상태에서, 1년이라는 단기간 내에 세차례에 걸쳐 합계 약 340억 원 상당의 유상증자의 자금이 정상적으로 납입될 수 있도록 투자자를 물색하는 것은 거의 불가능하다고 보이는 점에 비추어 보면, 피고인 2, 4는 1차 유상증자의 주금액 6,189,997,000원 중 5,999,999,500원이 가장납입된다는 사실을 알면서도 상피고인 1, 공소외 4 등과 공모하여 위와 같이 이 사건 범행에 적극 가담하였다고 봄이 상당하다.

3) Therefore, among the above facts charged, the part concerning KRW 5,99,99,99,50 of the main amount of KRW 6,189,97,00 among the main amount of KRW 6,189,97,00 shall be pronounced guilty on the ground of proof of a crime. The court below's decision that found Defendant 4 guilty on this part of the facts charged by considering the evidence in its judgment is just and it is not possible to find any illegality affecting the judgment, and there is no ground to discuss Defendant 4's appeal, but there is no other evidence to acknowledge this part of the facts charged because it is difficult to believe that Defendant 2 was in accordance with this part of the facts charged and there is no other evidence to prove it. The part concerning the main amount of KRW 6,189,97,97,500 among the above facts charged constitutes a case where there is no proof of a crime, and the court below's decision to the same effect is just and there is no ground to find any error within the scope of the prosecutor's appeal as to the remainder of the judgment.

(3) As to Defendant 4’s assertion of mistake of facts as to each of the following points: (f) violation of the Securities and Exchange Act; (h) violation of the Securities and Exchange Act; and (g) violation of the Commercial Act; and (i) violation of the Commercial Act; and the

According to the evidence duly examined and adopted by the court below, the defendant, in collusion with the defendant 1 et al. on July 2003, in providing the second capital increase with the second capital increase and the third capital increase with the third capital increase around October 2003 as stated in Paragraph (f) and (h) of Article 1-1 of the judgment of the court below, and in collusion with the above defendant 1 et al. on the payment of the stock price as stated in Paragraph (1) of Article 1 of the judgment of the court below, the defendant would make the payment of the stock price as stated in Paragraph (1) of the judgment of the court below, and as stated in Paragraph (g) and (i) of Article 1 of the judgment of the court below, it can be sufficiently recognized that the fraudulent facts are recorded in the commercial register which is the original copy of the authentic deed, and that the defendant's appeal that affected the conclusion of the judgment of the court below is without merit.

B. As to the violation of the Securities and Exchange Act

(1) As to Defendant 1’s assertion of mistake of facts

Article 188-4 (4) 2 of the Securities and Exchange Act prohibits an act of seeking money or other economic benefits by inducing misunderstanding of other persons by making false representation of important matters concerning the sale and purchase or other transaction of securities or by using documents in which necessary facts are omitted. Thus, the prohibition of fraudulent unfair trading under the Securities and Exchange Act is aimed at protecting individual investors’ interests participating in securities transaction and protecting investors’ trust in general securities exchange, thereby contributing to the development of the national economy (see Supreme Court Decision 2003Do686, Nov. 14, 2003); and

According to the evidence duly examined and adopted by the court below, the non-indicted 1 company announced on May 13, 2003 to the effect that 1.5 billion won will be invested in ASEAN, a corporation through the electronic disclosure system at the Financial Supervisory Service on May 13, 2003, and stated the scheduled date of investment on May 13, 2003 (3rd 1736 investigation records, such as Seoul Central District Prosecutors' Office No. 2004 type No. 13786), but it can be acknowledged that the above investment was not made on May 13, 2003, which is the scheduled date of investment. Defendant 4, who was in charge of preparing documents for public announcement at the time of the above recognition, did not appear to have a significant error in the court below's determination that it did not have any significant influence on the date when the non-indicted 1's first capital increase was made at the time of the public announcement, but it did not appear that the above non-indicted 1 company did not make a false public announcement on the above reasoning.

(2) As to Defendant 4’s assertion of mistake of facts

Defendant 1 instructed Defendant 4 to prepare documents for the publication of this case, i.e., the following circumstances acknowledged by the evidence duly examined and adopted, (i) from April 1, 2003, Defendant 4, who was in charge of Nonindicted Company 1’s practical control over Defendant 2’s representative director on behalf of Defendant 2, pursuant to Defendant 1’s order, and (ii) Defendant 4 stated at the prosecutor’s office that “I pretended that I would like to have contributed to KRW 1.5 billion to Agregrgrgrgrgrger,” ③ Defendant 1 did not make a false statement at the prosecutor’s office that “I would find himself and held Nonindicted Company 1’s shares and have been under the stock price management, and did not make a false statement to the effect that I would make a public announcement for the purpose of Non-Indicted Company 14’s investment on the same date, and that I would not make a false statement to the effect that I would have made a false statement to the effect that I would not make a public announcement.

Therefore, the judgment of the court below which found the defendant guilty of this part of the facts charged is just, and it is not possible to find any illegality affecting the judgment by misunderstanding the facts, so the defendant's appeal is without merit.

C. As to Defendant 1’s assertion of mistake of facts as to the violation of the Securities and Exchange Act No. 1-D. and the prosecutor’s defendant 4 as to the violation of the Securities and Exchange Act due to the false fact of price manipulation purpose (not guilty part)

(1) Summary of the facts charged

Defendant 1 and 4, in collusion with Nonindicted 9, who was the representative director of Nonindicted Company 1, did not spread false facts in order to gain unjust profits in connection with the sale and purchase or other transaction of securities, with the intention of preventing the opposite trade of the shares of Nonindicted Company 1 which Defendant 1 offered as security or raising the market price of the shares of Nonindicted Company 1 owned by Defendant 1;

On May 20, 2003, despite the absence of the intent or ability to manufacture the electric vehicle as the company’s facilities or capital, etc., the facts revealed that the advertisement intentionally spreads false information by inserting a false advertisement to the same effect eight times as indicated in the annexed Table 1, from that time, including a false advertisement stating that “the manufacturer and marketing of the electric vehicle for eight months” was posted in the newspaper (name omitted) to June 20, 2003.

(2) Defendant 1 and 4’s legal proceedings

Defendant 1 actually invested KRW 640,000,000 in Agrops, and provided preparatory services for the manufacture of electric vehicles in the name of Agrops, such as entering into a purchase contract of a factory site for the manufacture of electric vehicles, on the inside of Agrops, and if the plan was initially planned, it is possible to mass up electric vehicles on August 200 to September 9, 200, so the advertisement recorded in the above facts charged cannot be viewed as false. Defendant 4 asserted that the advertisement recorded in the above facts charged was led by Nonindicted 9, and that he was not related to him, and denied the above facts charged.

(3) Judgment on Defendant 1’s assertion of mistake of facts

(A) The judgment of the court below

In light of the following circumstances acknowledged by the court below, ① Nonindicted 3 was manufactured at the first place of the advertisement of 50 weeks, and the first place of the advertisement of Nonindicted 2 was frequently 40 billion won, and there were many problems, such as window failure, and the second place of the advertisement of Nonindicted 3 was frequently 50 billion won (Seoul Central District Prosecutors' Office No. 2080, 2081). ② Defendant 1 visited Nonindicted 3, 600,000,000,000,000 were 10,000,0000,000,000,000,0000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000).

(B) Judgment of the court below

In comparison with records, the fact-finding and judgment of the court below are all acceptable, and it cannot be said that there was an error affecting the judgment by misunderstanding the facts, and therefore, the appeal by the defendant is without merit.

(4) Determination on the prosecutor’s grounds for appeal

(A) The judgment of the court below

The court below found Defendant 4 not guilty on the grounds that the statements made by Defendant 1 at the court of the court below, each prosecutor's interrogation protocol against Defendant 1, and each statement made by Defendant 1 among the prosecutor's interrogation protocol against Defendant 4 against Defendant 4, which are evidence consistent with or consistent with the above facts charged as to Defendant 4, cannot be trusted in the following point, and there is no other evidence to acknowledge it.

① At Defendant 1’s order, Nonindicted 9 led to the mass media advertising as indicated in the facts charged.

② In view of the fact that Nonindicted 9’s funds deposited by Defendant 1 in the name of the Egyptian account were partially disbursed as advertising expenses for the mass production of electric vehicles as indicated in the facts charged, it appears that Nonindicted 9 led to the foregoing advertisement in Egypt, other than Nonindicted Company 1.

③ The above advertising costs were paid KRW 400 million by discounting or directly delivering the Promissory Notes on the Republic of Korea (6°66 of the Seoul Central District Prosecutor’s Office’s investigation records, etc. No. 2005-type No. 51217, etc.) and around May, 2003, Defendant 4 was already affiliated with Nonindicted Company 1 and was not involved in the business of the Republic of Korea, and thus, it is difficult to view that the issuance of the said Promissory Notes was involved in the business of the Republic of Korea.

(B) Judgment of the court below

In comparison with records, the fact-finding and judgment of the court below are all acceptable, and there is no reason for the prosecutor's appeal since it cannot be said that there was an error affecting the judgment by misunderstanding the facts.

D. As to the misunderstanding of facts as to Defendant 1 and 4’s violation of the Securities and Exchange Act

In light of the following circumstances acknowledged by the evidence duly examined and adopted by the court below, ① Co. 1 entered into an oral contract with Biet on July 2003, and on August 25, 2003, Defendant 1 asked Kim Young-young to pay advertising expenses for Nonindicted Co. 1 (a statement at the court below in Kim Young-young). ② Defendant 4 knew that Defendant 1 would carry out the daily container business without high seas, ② Defendant 1 conspired to put an advertisement with Defendant 6 to the effect that “No more than 30,000,000 were posted on the 6th of the above criminal facts (30,000,000,000,000,000,000,0000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00,00.

Therefore, the judgment of the court below that found Defendant 1 and 4 guilty of this part of the facts charged is just, and there is no error of law that affected the conclusion of the judgment by misunderstanding the facts, so the appeal by Defendant 1 and 4 is without merit.

E. As to Defendant 1’s assertion of mistake of facts as to the violation of the Securities and Exchange Act, as to Article 1-1(1)(b), (3) and (2) of the judgment of the court below

According to the evidence duly examined and adopted by the court below, the defendant conspireds with the defendant 4, the co-defendant 10, and the non-indicted 11 of the court below's decision, and orders for high-priced purchase over eight times for the purpose of inducing the sale and purchase on the securities market as shown in paragraphs (1) (b), (2) (a), and (b) of Article 1 of the judgment of the court below, and orders for buy and sell on 37 occasions, and as the non-indicted 1's trading of the non-indicted 1 is likely to take place, it may be sufficiently recognized that the defendant made the most fictitious trading that does not aim at the transfer of rights over 19 times for the purpose of causing another person to make a false judgment, and that he made the prior conspiracy trading over 79 times.

Therefore, the judgment of the court below which found the defendant guilty of this part of the facts charged is just, and it is not possible to find any illegality affecting the judgment by misunderstanding the facts, so the defendant's appeal is without merit.

F. As to Defendant 1, 4, and 3’s argument of misconception of facts as to the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Misappropriation of Trust)

(1) Judgment on Defendant 3’s assertion

The crime of breach of trust is established when a person who administers business on behalf of another person causes property damage to the other person. Even if the subject of breach of trust owns majority of the shares of the stock company which is the principal, the subject of the act and the principal are clearly separate. The crime of breach of trust is established when property damage occurs to the stock company which is the principal, and ultimately, the crime of breach of trust does not affect the already established crime even if the damage is the loss to the shareholder.

As discussed in the appeal, Defendant 1 is an actual owner as a major shareholder of the ASEAN, and even if the Korea ASEAN holds 49.99% of the shares of Nonindicted Company 1, Defendant 1’s transfer of the shares of this case to Defendant 3 in order to pay personal debts to Defendant 3 constitutes an unlawful breach of trust.

Meanwhile, in the case of the crime of breach of trust, any property damage cannot be deemed as having been incurred if the property damage was inflicted on the principal at the same time, and the profit in this context is limited to the profit acquired by the act of causing damage itself, and the defendant 1 transferred the shares in this case to the defendant in order to repay his personal debt, thereby causing a decrease in the value of property. Although the non-indicted 1 acquired the right to claim compensation for the transfer price or the equivalent value of the shares in this case against the defendant 1, it does not constitute the profit acquired by itself, even if the non-indicted 1 acquired the right to claim compensation

In addition, even if Defendant 3 did not have a large amount of claim against Defendant 1, it cannot be recognized that the means was a subordinate person to handle the affairs of Nonindicted Company 1, who is the principal, and that he violated his duties. Thus, Defendant 3’s complaint to collect his claim against Defendant 1 cannot be a subsidiary act of illegal breach of trust against social rules (this case’s share is merely a mere involvement of Defendant 1 as the counter-party to the transaction in the transfer of the shares in this case, and it is argued to the effect that Defendant 1 did not have an intention of breach of trust. Considering that the other party to the breach of trust, who is the other party to the breach of trust, has a separate interest from the other party to the transaction, and thus, it cannot be seen that the other party to the breach of trust, who was lawfully aware of the existence of a large amount of claim against Defendant 1, as well as the other party to the breach of trust, constitutes a joint principal act of this case’s crime of breach of trust or a joint principal act of this case’s act of breach of trust (see Supreme Court Decision 2005Da25).

Therefore, in the same purport, the court below's measures against Defendant 3 as co-principal of the crime of breach of trust are just, and there is no error of law that affected the conclusion of the judgment by misunderstanding the legal principles on the crime of breach of trust. Thus, the appeal by the defendant is without merit.

(2) Judgment on the mistake of facts or misapprehension of legal principles by Defendant 4

In light of the following circumstances acknowledged by the evidence duly examined and adopted by the court below, ① loaned funds equivalent to the size of Defendant 1 to Defendant 1, ② demanded Defendant 1 to repay the above bonds before Defendant 1 acquired the company, and Defendant 1 proposed that Defendant 3 will take over Nonindicted Company 1, which is Nonindicted Company 1’s local investment corporation, or will work as the branch office of Nonindicted Corporation 5, and ③ Defendant 3 did not know Defendant 1’s signature to Defendant 1, who was in front of March 2003, as well as Nonindicted 6, Nonindicted 7 (Korean Unit Group Staff), and Nonindicted 8, who did not know that Defendant 1 would have transferred his share to Defendant 4 to Defendant 1, who did not have been aware of the share of the above bonds to Defendant 1, and that Defendant 1 would have transferred his share of the above bonds to Defendant 1, who did not have been aware of the share of this case to Defendant 1’s public prosecutor’s order, and that Defendant 1 would not have transferred his share of this case to Defendant 5’s public prosecutor’s order.

Therefore, the judgment of the court below to the same purport is just, and there is no error of law that affected the conclusion of the judgment by misunderstanding the facts or misunderstanding the legal principles as to joint principal offense of breach of trust. Therefore, the appeal by the

(3) Judgment on the misapprehension of facts or misapprehension of legal principles as to the calculation of the amount of profit in the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

(A) The judgment of the court below

The court below rejected some of the statements made by the prosecutor's protocol against the witness Nam-ho, the evidence attached to or consistent with the above facts charged, and rejected that the objective property value of the shares in this case should be objectively determined through appraisal, etc., but unless there are special circumstances where the transaction party's transfer value is determined objectively, the transfer value can be viewed as objective property value of the shares and claims. At the time, Defendant 3 assessed its property value as a result of on-site inspection with the Chinese non-indicted 5 Corporation, and found Defendant 1, etc. value as property value of the shares in this case as KRW 1.31 billion through negotiations with the defendant 1, etc., and found the above facts charged as KRW 1.31 billion and the value of the shares in this case as property value is KRW 1.31 billion and KRW 35 million, and found the defendant not guilty of the remainder of the facts charged on the grounds that there is no proof of the judgment below.

(B) Judgment of the court below

As evidence consistent with or consistent with the above facts charged, some of the statements made by the prosecutor's statement made by the prosecutor against the witness Nam-ho, Nam-ho, and the citizen with jurisdiction. In full view of the above statements made by the witness Nam-ho, the non-indicted 1 entered into a joint investment agreement with the mechanical industry guns in China on May 24, 1995, and made an investment amounting to 52.8% out of the total capital of the non-indicted 5's corporation, and owned an investment amounting to 3,73,00,470 won of the above non-indicted 5's equity (52.8%) and 3,00,000 won of the above non-indicted 5's equity (52.8%) including short-term loans to the above non-indicted 5's limited liability, but the defendant 3 acquired the shares of this case from Defendant 1 on condition that he offsets his personal claims against Defendant 1.

However, according to the statement of Nonindicted Co. 1 in 2003, the above statement of Nonindicted Co. 1: (a) evaluated the book value of the instant shares as KRW 4,626,382,00 in total in consideration of the equity interest in the applicable investment shares and cash discount; (b) the actual amount of investment in Nonindicted Co. 1’s non-indicted 5, and the long-term and short-term loans, the long-term attempted amount, the proceeds of attempted payments, and the sales claim amount, are not submitted; (c) at the time of conducting on-site inspections with respect to Nonindicted Co. 5 in China, Defendant 3 assessed its property value as of the instant shares, etc.; and (d) recognized the property value of the instant shares, etc. as KRW 1,310,000,000 through negotiations with Defendant 1, etc.; and (d) according to the statement of asset evaluation report (Evidence No. 12); and (d) based on the value of shares in the instant case as of December 31, 2005.

Furthermore, as to whether Defendant 3 can regard KRW 1.30 million as the objective value of the instant shares, etc. through negotiations with Defendant 1, etc., the following facts are examined: ① Defendant 3 would file a complaint for fraud if Defendant 1 did not repay his debt to Defendant 1; ② Defendant 1 and Defendant 3 transferred the instant shares, etc. to Defendant 3; ② in the process of the aforementioned transfer, the value of the instant shares, etc. was determined as KRW 1.31 billion at will while settling their debt and debt, and it is difficult to find out the objective value of the instant shares, such as property value of KRW 1.3 billion at the time of the purchase; ③ Defendant 1’s statement by the parties involved in the transfer of the instant shares, etc. is difficult to view the value of the instant shares as property value of KRW 1.3 billion at the time of the purchase; ④ It is difficult to find the objective value of the instant shares as property value of KRW 1.3 billion at the time of the purchase of the instant shares, etc. as the value of the instant shares, as property value of KRW 1.

Therefore, the above facts charged should be pronounced not guilty on the ground that there is no proof of a crime. However, the court below recognized that the amount of profit caused by Defendant 1, etc.'s breach of trust is KRW 1.31 billion and applied Articles 3 (1) 2 and 356 and 355 (2) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes to the above facts charged. It is erroneous in the misapprehension of legal principles as to the calculation of the amount of profit in violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes and thereby affecting the conclusion of the judgment. The appeal by Defendant 1 and 3 pointing this out is justified.

G. As to Defendant 1’s assertion of mistake on violation of the Securities and Exchange Act

First, on August 31, 2003, the Defendant stated at the prosecution that “Non-Indicted 12, whose shares were listed at Non-Indicted 1 Company’s stock price manipulation, were relisted on September 1, 2003, the following day. On the same day, he would raise the share price on a high price of 20% after 10 days from purchase of the shares.” However, on September 1, 2003, the Defendant stated that “Non-Indicted 12, whose shares were listed at the lower price than KRW 3,300 won on the 5G market price manipulation on the day of 0G market manipulation,” and that “Non-Indicted 2,000,000 won were 17,000 won on the 10G market price manipulation on the day of 200,000 won on which Non-Indicted 1’s new shares were purchased at the 9G market price manipulation on the date of 100,000 won on the 2G market price manipulation.”

In full view of the above statements, etc., the court below duly examined and adopted the accusation and notice, investigation report, and detailed statement of manipulation of market price in collusion with Nonindicted 18, 12, 20, 19, etc. for the purpose of inducing the Defendant to trade on the securities market, it can be sufficiently recognized that the Defendant made a trade in order with the aim of inducing the Defendant to trade on the securities market, such as the list of crimes listed in annexed Table 8 of the judgment below.

Therefore, the judgment of the court below which found the defendant guilty of this part of the facts charged is just, and it is not possible to find any illegality that misleads the facts, and therefore the appeal by the defendant is without merit.

H. As to Defendant 1’s misunderstanding of facts as to the violation of the Illegal Check Control Act

The crime of violation of Article 2 (2) of the Illegal Check Control Act is established when the issuer issues a check, predicting that the shortage of deposits would not be paid on the date of presentation and the result that the check would not be paid on the date of presentation is established when the issuer issues a check. Thus, if the amount of a check incurs the result that the check would not be paid on the date of presentation without any clear measures for securing the current account for considerable deposit or cash payment, it constitutes the crime of violation of Article 2 (2) (see Supreme Court Decision 99Do4923, Mar. 1

In full view of various evidence duly examined and adopted, in particular, the statement at police stations, written request for suspension of payment (Seoul Central District Prosecutors' Office 2005-type No. 41946 and 222 of the investigation records), etc., the number of units per the judgment of the court below, which is held in the judgment of the court below, shall be issued and delivered as debt security for Defendant 5, such as that the defendant, who is the actual operator of Hesan department store, entered in the face value of the above shares, entered in the list, etc., and the defendant predicted that the above number of units was not paid on the date of presentation due to the shortage of deposits at the time of issuing the above list (194 pages of the investigation records), Nonindicted 3 presented the above list of units per the above 20-year district court's request for payment suspension (200-type No. 41946, Dec. 24, 2003).

According to the above facts, as long as the defendant predicteds the occurrence of the result that he will not pay on the date of presentation due to the shortage of deposits and issued the above check number, it is reasonable to view that the crime of violation of Article 2 (2) of the Illegal Check Control Act was established at the time of issuance of the above check number list. Although Non-Indicted 2's request for the submission of the above accident report and the suspension of payment, even if the above accident report was not paid on the part of Non-Indicted 2's request for the submission of the above accident report and the suspension of payment, so long as the above accident report is confirmed to be false, the crime of violation of Article 2 (2) of the Illegal Check Control Act against the defendant, who is the issuer, is established (if the report of the accident that the check number was altered and falsified, it is the practice

Therefore, the judgment of the court below which found the defendant guilty of this part of the facts charged is just, and it is not possible to find any illegality that misleads the facts, and therefore the appeal by the defendant is without merit.

I. As to Defendant 5’s assertion of misunderstanding of the facts as to violation of the Securities and Exchange Act, and the Prosecutor’s assertion of mistake as to Defendant 1 on the violation of the Securities and Exchange Act (not guilty part) due to the price manipulation of new stocks, violation of the obligation to report stocks and changes in stocks held in bulk, and violation of the Securities and Exchange Act

(1) Summary of the facts charged

(A) On August 8, 2003, Defendant 1 and 5 conspired to artificially support the share price of the same credit with the face value of at least 5,000 won, which is at least 5,000 won, at least 1,000 won, which is the de-listing standard, with Defendant 1 and the chairperson of the Dong Dong Dong, with the intention of inducing the sale of 8,043,180 shares of the same credit through a total of 20 accounts, such as the name, middle, bank account, etc. from August 12, 2003 to August 28, 2003 and selling 3,806,680 shares in total;

1) From August 18, 2003, at the Jung-gu Office of Management of Defendant 5 located in Jung-gu Office of Seoul, Jung-gu, Seoul, the new shares of which are KRW 1,050, KRW 1,060, KRW 1,000, KRW 1,000, KRW 200, KRW 1080, KRW 380, KRW 13,085, KRW 380, KRW 1,090, KRW 65,000, KRW 40, KRW 55,000, KRW 55,000, KRW 1,000, KRW 50, KRW 1,000, KRW 15,000, KRW 1,000, KRW 1,000, KRW 1,060, KRW 1,060, KRW 200, KRW 208, KRW 208,50, KRW 29,205, etc.

2) On August 20, 200, at the same place as 14:59:22 at the time of receipt of the closing price order on August 20, 2003, the immediately preceding conclusion is 20 won compared to the number of 14:5 won compared to the number of 1.60 won compared to the number of 1.65 won compared to the number of 1.60 won compared to the number of 1.65 won compared to the number of 1.95 won per unit, and the closing price on the same day has increased as 9.55 won on the day of issuance of orders for purchase of a large amount of 1.00 won from August 20, 2003 to August 27, 2003 as indicated in the attached Table 10 of the judgment below, all of the orders for purchase of a paper 325,500 won united

transaction with a change in the market price; and

(B) Defendant 1:

1) In the event that the principal and its specially related persons hold more than five percent of the total number of shares or the shareholding ratio is changed by not less than one percent of the total number of shares of the corporation, the changes shall be reported to the Financial Supervisory Commission, etc. within five days from the date of

On August 14, 2003, by purchasing 1,958,720 shares of that new shares, the shares were held 2,440,810 shares (19.28%) including the shares held during that period, and did not report within the prescribed period, even though the cause for the purchase occurred, and the shares were not reported within that period from September 6, 2003 as shown in the attached Table 13 of the judgment of the court below, and did not perform the duty to report the holding of shares on three occasions as shown in the attached Table 13 of the judgment below;

2) An officer or a major shareholder of a stock-listed corporation shall report to the Securities Futures Commission, within 10 days from the date on which he or she becomes an officer or a major shareholder, the current status of ownership of the corporation in question on his or her own account regardless of in whose name the shares are held, and, if there is a change in the number of shares held,

On August 14, 2003, by purchasing shares 1,958,720 shares of the same new shares, the ownership of 2,440,810 shares (19.28%) including shares that have been owned until now, becomes a major shareholder, and the purchase of shares 5,602,370 shares of the same new shares from August 18, 2003 to September 1, 2003 as shown in the list of crimes in attached Table 14 to the judgment below, and the fact that there have been a change in the number of shares and the fact that the ownership has been owned by a major shareholder during the process of selling 8,043,180 shares, was not reported within the period.

(2) Defendant 1 and 5’s legal proceedings

As to the above facts charged, although Defendant 1 attempted to accept the Dong, there was no crime of market price manipulation in collusion with Defendant 5, and since Defendant 1 was not Defendant 1 but Defendant 5, Defendant 1 did not have a duty to report the stock purchase of this case. Defendant 5 asserted that Defendant 1 did not have a duty to report the stock purchase of this case. Defendant 5 conspired with Defendant 1, or did not actually purchase orders as a principal agent of stock transaction, and denied the above facts charged.

(3) The judgment of the court below

In full view of the evidence presented by the court below, the court below found Defendant 5 guilty of the above facts charged, but found Defendant 1 not guilty on the grounds that the above facts charged constitute a case where there is no proof of criminal facts in the following respect:

In other words, according to the above facts charged, there are some statements made by the prosecutor's office against Defendant 1 and Defendant 5 (including the part of the defendant's statement) and written answers to Defendant 5 (Seoul Central District Prosecutors' Office No. 2005-type No. 5970). First, according to the above statements by Defendant 5, Defendant 5 lent a large amount of money to the chairman of the Seocho-gu Office as 9.5 billion won to the effect that it is difficult for Defendant 1 to find the above facts to be proven that the above facts were insufficient for Defendant 1 to have been purchased, and that it was difficult for Defendant 1 to use the above facts to find that it was difficult for Defendant 5 to use the above facts, and that there was no doubt that Defendant 1 would have been 50 billion won or more for the reasons that Defendant 1 would not have any more than 50 billion won of the above facts charged, and that Defendant 1 would not have any more than 50 billion won of the above facts charged.

(4) Judgment of the court below

(A) As to the violation of the Securities and Exchange Act due to the stock price manipulation by Defendant 1 and Defendant 5 in the judgment of the court below

1) In relation to co-offenders who jointly process two or more persons in a crime, the conspiracy does not require any legal punishment, but is a combination of two or more persons to jointly process a crime and realize the crime. Even if there was no process of conspiracy, if there was a combination of intent to do so in order or impliedly, the conspiracy is established between several persons, and even if there was no direct participation in the conduct, even if there was no direct participation in the conduct, the conspiracy is established, and even if there was a person who did not directly participate in the conduct, he/she shall be held criminal liability for the act of another person 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 (see Supreme Court Decision 2004Do1164, Nov. 10, 2005).

2) In the letter of intent of transfer and takeover concluded between Defendant 1 and the Sc&C, a major shareholder of the PP&C, and the Sc&C representative director, the purchase price of 28% of the new shares acquired by Defendant 1, a transferee, shall be the purchase price. Defendant 1 shall hold at least 28% of the shares issued by the PP&C (3,545,568 shares) and the transferor shall hold at least 28% of the shares issued by the PP&C, and at the time when Defendant 1 holds 28% of the shares issued by the PP&C, the transferor shall transfer the remaining shares and the management right to Defendant 1.

3) Defendant 1 made a statement at the prosecutor’s office to the effect that “Defendant 5 was aware of the fact that he had entered into a letter of intent to transfer and take over the new shares, approaching the author, raising the price of the new shares above KRW 1,00, providing funds for acquisition, and operating funds after acquisition, demanding him to repay the claims that he would have received from the new shares, and he would purchase the shares of the new shares upon his consent to the said demand” (the second investigation record No. 107 pages), or Defendant 5 was aware of the fact that he would artificially support the new shares of more than KRW 1,00,00, and Defendant 5 was unable to purchase the shares of the new shares, and Defendant 5 found money contained in the corporate passbook under the name of Nonindicted Company 1 in order to obtain the shares of the new shares.

4) The lower court rejected Defendant 1’s statement at the lower court’s 5th trial, each of the above statements made by the prosecution and the police, and the statements made by the Financial Supervisory Service on the grounds as indicated in its reasoning. However, the following circumstances acknowledged by the evidence duly examined and adopted by the lower court, i.e., (i) the motive of Defendant 1’s acquisition of new shares as a construction enterprise, and there was a lot of real estate at the construction site, and it is anticipated that the company would be able to normalize if 20,000 won was given due to the nature of the construction enterprise. (2) It appears that the acquisition plan would not be feasible if Defendant 2 purchased new shares from 00,000,000,000 won or more, and that Defendant 1 would not have purchased new shares from 30,000,000,000 won or more, and that it would have been concluded between Defendant 2 and the above 30,000,000 won or more.

5) In full view of the facts and various circumstances found by Defendant 1 and 5’s statements, etc. duly examined and adopted by the lower court, Defendant 1 and 5 conspired to attract the sale and purchase transaction on the securities market, and thus, it is deemed that Defendant 1 and 5 engaged in a trade that changes the market price by issuing high-priced purchase orders and paper purchase orders as shown in the facts charged with the purpose of inducing them to trade on the securities market.

6) Therefore, this part of the facts charged shall be pronounced guilty with the proof of crime. The court below's judgment that found Defendant 5 guilty based on the evidence of the judgment of the court below is reasonable and it is not possible to find any illegality that affected the conclusion of the judgment by misunderstanding the facts. Thus, the above argument by Defendant 5 is without merit, but it is difficult to view that Defendant 1 conspired with Defendant 5 to sell and purchase the same as the above facts charged, and there is no other evidence to acknowledge it, and there is an error of law by misunderstanding the fact that it constitutes a case where there is no proof of crime and thereby affecting the conclusion of the judgment. The prosecutor's appeal pointing this out has

(B) As to Defendant 1’s violation of the Securities and Exchange Act due to Defendant 1’s violation of the stock holding and duty to report changes in stocks

Some of the statements made by the defendant 5, each prosecutor's protocol of interrogation of the defendant 1 and the defendant 5 (including the statement made by the defendant 1), police interrogation protocol of the defendant 5, questions and answers to the defendant 5 (Seoul Central District Prosecutors' Office 2005 type No. 5970, etc.) are written as evidence consistent with or consistent with the above facts charged.

Defendant 1 has no direct evidence to acknowledge that Defendant 5 loaned funds from Defendant 5 to purchase new shares. Defendant 5 borrowed 1 billion won from all the 20 accounts that Defendant 5 used to manipulate the market price of this case to Defendant 5, Defendant 1 did not have any one account provided by Defendant 5, Defendant 5 raised a total of KRW 4.5 billion in the market price manipulation of this case. Of them, Defendant 1 raised funds from Defendant 1 was merely KRW 1 billion, and Nonindicted 15 stated in the Financial Supervisory Service that “Defendant 5 and Park Jong-dae who held more than 5% interest rate to 5%” (3rd 138 pages of the investigation record) was stated to the effect that “Defendant 1 borrowed 1 billion won from the prosecution to Defendant 5 under the pretext of the market price manipulation of this case. When it becomes final and conclusive that Defendant 5 purchased new shares from that country, there is no possibility that Defendant 1 purchased the shares from each of the above Defendant 15 new shares on the account of Defendant 5’s lack of evidence to acknowledge that Defendant 5 new shares.

Therefore, the judgment of the court below to the same purport is just, and it is not possible to find any illegality that affected the judgment by mistake of facts, and therefore, it is not reasonable to discuss the appeal by the prosecutor.

(j) As to Defendant 1’s assertion of mistake of facts as to the fraud

According to the evidence duly examined and adopted by the court below, it is reasonable to see that the victim of the crime of defraudation, which is the bill of this case, is a sexual virtue, as stated in the judgment of the court below, by means of gambling at the date, time, and place of the judgment of the court below, and to the purport of the judgment of the court below, and deposit KRW 270 million in the name of the discount of promissory notes issued by the non-indicted 1 with the deposit account of the non-indicted 4, which was known by the defendant, as well as that of the non-indicted 1, 204.

Therefore, the decision of the court below to the same purport is just, and there is no reason to discuss the defendant's appeal since it cannot find any illegality that misleads the facts.

(k) As to Defendant 1’s assertion of mistake of facts as to the fraud

According to the evidence duly examined and adopted by the court below, it is reasonable to view the defendant as a victim of the crime of defraudation of the money in this case, and even if the defendant knew of the above facts, it is reasonable to see that the victim of the crime of defraudation of the money in this case is pregnant, it is reasonable to see that the defendant was a victim of the crime of fraud, and even if the above money was delivered to the defendant, the defendant was delivered a new bill and check to the dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-

Therefore, the decision of the court below that found the defendant guilty of this part of the facts charged is just, and it is not possible to find any illegality that misleads the facts, so the appeal by the defendant is without merit.

(l) As to the prosecutor's assertion of mistake of facts as to the violation of the Control of Illegal Check Control Act (not guilty part) against the prosecutor's defendant 4

(1) Summary of the facts charged

Defendant 4 in collusion with Defendant 2 or 1:

Around January 2003, Defendant 1 had taken over the Korea Scream, and Defendant 1 had been issued a check of shares and continued to trade after changing the representative director of the Korea Scream account from around October 31, 2000 to Defendant 2 at the back-dong Enterprise Finance Branch of the New Korea-based Bank, a transaction from around October 31, 200, to Defendant 1 had been made.

On December 2003, 200 won per face value of 150,000,00 won per face value (the check number Ma is 083098, the date of issuance, January 7, 2004) issued a check number of 150,00,00 won per face value and presented payment within the lawful period of time for payment by the holder, but the holder did not pay for the shortage of deposit, as shown in the attached Table 11 of the judgment of the court below, and the holder issued a check equivalent to KRW 1,190,00,000 in total as shown in the attached Table 11 of the Crimes List as shown in the judgment of the court below, and presented the payment within the lawful period of time for payment by the holder, but not

(2) Defendant 4’s defense counsel

Around March 2003, the Defendant, at Defendant 1’s instruction, left the Republic of Korea Scream and became Nonindicted Company 1, and all personal seal impressions and checks related to the schedule of the shares of the ASEAN, etc. were transferred to the foreign exchange, etc., so the Defendant asserted that the Korean Scream as indicated in the above facts charged after March 2003 is irrelevant to himself, and denied the above facts charged.

(3) The judgment of the court below

In the following respect, the lower court acquitted the Defendant on the grounds that the facts charged constitute a case where there is no proof of criminal facts.

In other words, there are statements made by the above defendants 1 and 2 at each prosecutor's office and police (Seoul Central District Prosecutor's Office 2005 type No. 41893, etc.). First, as to the above statements by the above defendants 1, the above defendants 1 stated that the above facts charged were issued irrespective of the defendant when they come to the court of original judgment. ② The transfer of the Korea Switzerland management director to the defendant's office is made at the prosecutor's office, and the defendant 4 managed the name cards necessary for issuing the Korea Switzerland number of shares from January 2003 to May 203 while keeping the name cards, corporate seal impressions, etc., but the subsequent two months' quantity was stored in the Korean ASEAN office book, and again, the defendant 1 made it difficult to recognize that the defendant 2's statement or the above facts charged is insufficient to acknowledge that the defendant 1 made a statement to the effect that the defendant 1 had no other evidence to the effect that the above defendant 2's right to the above facts charged was issued.

(4) Judgment of the court below

In comparison with records, the fact-finding and judgment of the court below are all acceptable, and there is no reason to hold the prosecutor's appeal on the ground that it cannot be said that there was any illegality affecting the judgment by misunderstanding the facts against the rules of evidence.

(m) As to the Prosecutor’s assertion of misapprehension of the legal principles as to the violation of the Punishment of Tax Evaders Act (Dismissal of Prosecution) as to Defendant 1

(1) Summary of the facts charged

Defendant 1 in collusion with Nonindicted 23:

(A) Around July 2001, at the office of Nonindicted Co. 24, 2001, the facts are issued 80 tax invoices as shown in the attached Table 15 of the judgment of the court below, as shown in the judgment of the court below between around July 2002 and July 2002, as shown in the attached Table 15, as if the goods or services were supplied to 11 companies as if the goods or services were supplied to 11 companies as shown in the attached Table 15 of the crime committed in the judgment of the court below, although there was no fact that the goods or services were supplied to Taesungdong Co., Ltd. located in Taesungdong-dong Seoul Metropolitan Government.

(B) On July 2001, the office of Nonindicted Co. 24 received a tax invoice in Chapter 59 as if he received a tax invoice as if he received a supply of goods or services equivalent to KRW 1,099,053,00 from the Dlim Computer located in Ansan-dong, even though he had not received any goods or services from him, and from July 2002, from that time until July 2002, as shown in the annexed Table 16 of the judgment of the court below, as shown in the annexed Table 16 of the judgment of the court below, as if he received a supply of goods or services worth KRW 7,159,138,00 in total without being supplied with goods or services from eight companies.

(2) The judgment of the court below

Article 254 (4) of the Criminal Procedure Act provides that "The entry of facts charged shall be made by specifying the time, date, place, and method of a crime, so that the facts charged can be specified." Thus, it is not effective to institute a public prosecution without specifying the facts charged. The crime of issuing tax invoices for non-transaction under Article 11-2 (4) of the Punishment of Tax Evaders Act is established by each tax invoice (see Supreme Court Decisions 2000Do3945, Nov. 24, 200; 82Do1362, Dec. 14, 1982).

The court below dismissed the public prosecution pursuant to Article 327 subparagraph 2 of the Criminal Procedure Act on the ground that the indictment of this case on this part constitutes a case where the prosecution of this case is null and void in violation of Article 254 (4) of the Criminal Procedure Act on the ground that it constitutes a case where the prosecution of this case constitutes a case where the prosecution of this case constitutes a case where it is null and void in violation of Article 254 (4) of the Criminal Procedure Act, because it merely states that Defendant 1 issues a false tax invoice of 80 and received a false tax invoice of 59

(3) Judgment of the court below

In accordance with the purport of the Supreme Court precedents as above, the court below dismissed the prosecution of this case on the ground that the indictment of this part is null and void. The purpose of the law punishing the receipt of false tax invoices is to punish the receipt of statements without supplying goods or services, and each tax invoice is not to punish the violation of the duty of reporting, such as omitting a report or filing a false report in relation to the return of value-added tax, and therefore, separate crimes are established for each tax invoice, and each tax invoice differs from the legislative intent of the law, and thus, it cannot be treated as the crime of violating the Punishment of Tax Evaders Act by including the crime of violating the Punishment of Tax Evaders Act by reporting value-added tax as a list of tax invoices. Thus, the reasons cited by

In the end, the above judgment of the court below is just, and there is no error of law by misunderstanding the legal principles as to the specification of facts charged, which affected the conclusion of the judgment, and therefore, the prosecutor's appeal is without merit.

n. As to Defendant 5’s assertion of unreasonable sentencing

The Defendant committed the instant crime in collusion with Defendant 1 on 84 occasions by purchasing a total of 2,275,470 shares over 20 occasions with a view to inducing transactions on the securities market, and by selling and buying a total of 325,500 shares over 18 times. The Defendant’s leading the instant crime and resulting in a change in the market price. As a result, it cannot be said that the Defendant’s crime is less likely to be committed in that the Defendant’s leading the instant crime and causing a large number of damages to a large number of shareholders. The Defendant’s crime was committed only once, and there was no criminal offense identical to the instant crime, and there was no profit acquired by the Defendant from the instant crime, and all of the sentencing conditions indicated in the records, such as the age, character and conduct of the Defendant, family environment, etc., by taking into account the following factors: (a) the lower court’s choice of imprisonment to the Defendant and considering the circumstances surrounding the Defendant’s committing the instant crime, the Defendant’s suspended execution of the sentence is inappropriate and unreasonable.

(o) Ex officio determination on Defendant 4

Defendant 4’s judgment on the grounds for appeal of unfair sentencing is based on the reasoning of misconception of facts or misapprehension of legal principles as to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of Trust) by authority prior to the judgment on the grounds for appeal of unfair sentencing by Defendant 4, and the part against Defendant 1 and 3 among the conviction part of the judgment below should be reversed as stated in the above 3. F. 3. 3(b). Since Defendant 4 is the accomplice of the above facts charged and the ground for reversal for Defendant 1 and 3 is common to Defendant 4, it should be reversed for the same reason as to Defendant 4 among the conviction part of the judgment below pursuant to Article 364-2 of the Criminal Procedure Act. Thus, the part against Defendant 4 cannot be maintained as is

(p) As to the remainder of the Prosecutor’s appeal

Of the prosecutor's appeal as to the acquittal portion of the judgment below against the defendant 1, 2, and 4, the violation of the Securities and Exchange Act against the defendant 1, the violation of the Commercial Act, the false entry of the original of the notarial deed, the fact of the exercise of the original of the notarial deed (the part related to the 1,31,500,000 won or more), the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (the amount exceeding 1,31,000,000 won), the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) (the part related to the Embezzlement amount exceeding 1,50,000,000 won), the violation of the Securities and Exchange Act against the defendant 4, the violation of the Commercial Act, the fact of the false entry of the original of the notarial deed, the fact of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (the 1,300,000,000 won).

4. Conclusion

Therefore, there are reasonable grounds for appeal about Defendant 1 and Defendant 3's violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes) and prosecutor's violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes), the violation of the Securities and Exchange Act on Defendant 2, the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes), the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes), the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes) and the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (the part on the defendant's).)

Defendant 1, 2, 4, and 3's criminal facts as indicated in the judgment of the court below are to be changed to "1. A. 1, 2, and 4's criminal facts as indicated in the judgment of the court below," and "Defendant 1, 2, and 4" in Paragraph 1-b. 1's criminal facts as stated in the judgment of the court below to "B. 1, 2, and 4". ② "3. 1" in Paragraph 3 of the criminal facts as stated in the judgment of the court below as stated in the judgment of the court below to " around January 204. 8, 204," and "defendant 1, 4, 3, and 3's additional criminal facts as stated in the judgment of the court below to "the defendant 1, 4, and 4" to "the defendant 1, 500, 1, 600, 1, 2, and 6. 7's criminal facts as stated in the judgment of the court below."

1. Article applicable to criminal facts;

- Article 1-1 (A), (f), and (h) of the holding: Article 7 of the Addenda to each Securities and Exchange Act (amended by Act No. 7025 of Dec. 31, 2003), Article 207-3 (2), Article 8 of the former Securities and Exchange Act, Article 30 of the Criminal Act

- The amount of each lump sum payment under Section 1-b (1) and (g) of the holding: Articles 628(1) and 622(1) of the Commercial Act; Article 30 of the Criminal Act

· The point of entry of each of the original notarial deeds in paragraphs (2), (g), (2) and (i) of Article 228(1) and Article 30 of the Criminal Code

- In the event that each of the false entry in the notarial deed is exercised under section 1-b (2), (g), (2), and (i): Articles 229, 228(1), and 30 of the Criminal Code

- The false indication of the market price manipulation purpose in Section 1-C.: Articles 207-2(1)2 and 188-4(4)2 of the Securities and Exchange Act, Article 30 of the Criminal Act

- The dissemination of false facts for the purpose of price manipulation as stated in Section 1-d of the holding: comprehensively Article 207-2(1)2 of the Securities and Exchange Act, Article 188-4(4)1 of the Securities and Exchange Act, Article 30 of the Criminal Act

Article 207-2(1)2 of the Securities and Exchange Act, Article 188-4(4)1 of the Securities and Exchange Act, Article 30 of the Criminal Act, collectively,

(j) The point of the market price manipulation of No. 1 of the ruling: Article 207-2(1)2 of the Securities and Exchange Act, Article 188-4(1)1, 2, 3, 2(2)1, and 4(2)2 of the Securities and Exchange Act, Article 30 of the Criminal Act, collectively;

· The payment of each wage under Article 2: the main text of Article 112 and Article 36 of the Labor Standards Act

- Article 3-A of the ruling: Articles 225 and 30 of the Criminal Code

- Article 3-2(b) of the Decision: Articles 235, 228(2) and 30 of the Criminal Act

- Article 3-3(c) of the holding: Articles 229, 225, and 30 of the Criminal Code

- Article 356, Article 355(2), Article 30 of each Criminal Code (However, since Defendant 3 does not have the status of a person who administers another's business, the punishment provided for in Article 355(2) and (1) of the Criminal Code shall be imposed pursuant to the proviso to Article 33 and Article 50 of the Criminal Code).

- Article 4-2 (1) 2 of the Securities and Exchange Act and Article 188-4 (2) 1 of the Securities and Exchange Act, inclusive,

- Each appeal under section 5-A, (c), (2), (3), and (4): Articles 156 and 30 of the Criminal Act

· The fact that false reports are made to financial institutions under Section 5-B of the holding: Article 4 of the Illegal Check Control Act; Article 30 of the Criminal Act

- Article 6-A, Article 8-A, Article 3(1), Article 2(2) and (1) of the Illegal Check Control Act, Article 30 of the Criminal Act

· The market price manipulation under Section 7-A of the holding: In the aggregate, Articles 207-2(1)2 and 188-4(2)1 of the Securities and Exchange Act

Section 7-B of the holding: Articles 356 and 355(1) of the Criminal Act;

· Each fraud in subparagraph 8-b)(1) and (2) of the judgment: Article 347(1) of the Criminal Act

Article 9-2(4) of the former Punishment of Tax Evaders Act (amended by Act No. 7321, Dec. 31, 2004); Article 2 of the Addenda of the Punishment of Tax Evaders Act (amended by Act No. 7321, Dec. 31, 2004); Article 11-2(4) of the former Punishment of Tax Evaders Act

1. Commercial competition;

Articles 40 and 50 of the Criminal Act

- Among the crimes of false accusation by the accusation petition filed on September 1, 2003 of Article 5-A of the judgment and the crimes of false accusation filed on September 19, 2003: The punishment for the crimes of false accusation as to the correspondence with a heavier judgment of each of the crimes committed on September 19, 203;

- Among the crimes of false accusation referred to in subparagraph 5(c)(1) of the judgment: Punishment for a crime of false accusation against Kim Jong-young with a heavier penalty

1. Selection of punishment;

The remainder of the crimes except the crime of forging an official document and the crime of uttering of forged official document: Defendant 1, 4 and 3 shall be punished by imprisonment, and each fine shall be imposed on Defendant 2.

1. Aggravation of repeated crimes (Defendant 1);

Article 35 (Limits to Crimes of Violating Punishment of Tax Evaderss under Article 9-1 (1) of the Criminal Act)

1. Handling concurrent crimes (Defendant 2, 4);

The latter part of Articles 37 and 39 (1) of the Criminal Act [the former part of Article 39 (1) of the Criminal Act and the former part of Article 39 (1)]

1. Aggravation of concurrent crimes (defendants 1, 2, 4);

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 (In the case of Defendants 1 and 4, the heavier punishment and the nature of crime, and in the case of Defendants 2, the aggravated punishment of concurrent crimes with the punishment prescribed in the Securities and Exchange Act with the largest punishment)

1. Attraction in a workhouse (Defendant 2);

Articles 70 and 69(2) of the Criminal Act

1. Calculation of days of pre-trial detention (Defendant 1, 4);

Article 57 of the Criminal Act

1. Suspension of execution (Defendant 3);

Article 62(1) of the Criminal Act (Statement of Reasons for Sentencing as follows)

1. Order to make provisional payment (Defendant 2);

Article 334(1) of the Criminal Procedure Act

1. Defendant 1

Defendant 1, as the chairperson of Nonindicted Company 1, who actually manages Nonindicted Company 1, has a duty to maintain and manage the company’s assets in good faith. However, Defendant 1 spreads false facts to make a false representation for the purpose of inducing sale and purchase transaction or to increase the market price of Nonindicted Company 1’s shares; Defendant 1 arbitrarily transferred the company’s property and embezzled it using the company’s property for personal repayment; Nonparty 1’s bill and check amount at will; Defendant 1’s bill and check amount at KRW 2 billion (the amount recognized to be guilty) which had not been recovered up to the present time; Defendant 1 reported that the change in the number of shares was inevitable in the process; and Defendant 1’s possession of false shares by reporting it to the investigation agency for the purpose of criminal punishment; and Defendant 1’s possession of false shares at the same time. In light of the fact that there was a large amount of damages to Defendant 1’s own shares by reporting it to the investigation agency, Defendant 1’s possession of false shares at present.

In the first instance trial, workers who agreed with some victims of the crime of false accusation in this case, who did not receive wages, received part of dividends in the auction procedure, recovered the amount of KRW 1.2 billion out of the check amount, and the court below found that the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of Trust) which the court below found guilty constituted occupational breach of trust. However, the court below found Defendant 1 guilty not only in the trial but also in the case of violation of the Securities and Exchange Act due to the price manipulation of new stocks which was pronounced not guilty at the court below, but also in the case of Defendant 1's very serious crime.

2. Defendant 2

Although Defendant 2 had a duty to maintain and manage the company's assets in good faith as the representative director of the non-indicted 1 company, the crime of this case is likely to seriously undermine the company's capital adequacy by making a disguised payment of share capital increase in the amount equivalent to 6 billion won, and its nature is not less than that of the crime. However, the crime of this case is related to concurrent crimes under the latter part of Article 37 of the Criminal Act, which had the possibility of being judged at the same time by law, and since the above defendant did not appeal the conviction portion, its partial punishment becomes final and conclusive. In addition to the non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 2's non-indicted 2's non-indicted 1's non-indicted 3's non-indicted 3's non-indicted 3's non-indicted 3's non-indicted 3's non-indicted 1's non-indicted 1's crime of this case.

3. Defendant 4

Although Defendant 4, as the vice president of Nonindicted Company 1, has faithfully maintained and managed the company’s assets, he would significantly undermine the capital adequacy of the company by making an advanced payment of the share capital equivalent to approximately 34 billion won, and spread false information to make a false indication for the purpose of inducing the sale and purchase transaction, or to increase the market price of the Nonindicted Company 1’s shares, and thereby arbitrarily transferred the company’s assets to the majority shareholders who own the shares of Nonindicted Company 1’s personal debt repayment, thereby resulting in considerable damages to the majority shareholders who own the shares of Nonindicted Company 1. In light of the fact that the reorganization claim amount is eventually bankrupt, and the amount of the reorganization claim amount is up to the million won, and the degree of Defendant 4’s participation in the instant crime, it is also inevitable to punish the corresponding crime.

However, in light of the fact that each crime of the judgment and the false accusation, etc. of the judgment, which have become final and conclusive, are concurrent crimes under the latter part of Article 37 of the Criminal Act, which could be tried at the same time by law, and there is no other criminal record except for the previous crimes such as the crime of false accusation, etc. of which judgment has become final and conclusive, and the fact that he participated in the crime of this case and served

4. Defendant 3

The crime of this case is committed by Defendant 3 who actively participated in the crime of this case in order to satisfy his claim and was transferred the property of Nonindicted Company 1, and the nature of the crime is not less than that of the crime. However, Defendant 3 is determined as per Disposition by taking account of the following: (a) the previous criminal record of the suspended execution of the crime of this case was only one time, and the previous criminal record of the crime of violation of the Punishment of Violences, etc. Act was only one time, and there is no same criminal record; and (b) it is not likely that Defendant 3 would have

1. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) against Defendant 1, 4, and 3

A. Summary of the facts charged

Defendant 1, 4, and 3 in collusion with Defendant 2, and Defendant 3 used to transfer the shares in Nonindicted 5 Limited Liability Company in China, which were owned by Nonindicted 1 Company, to Defendant 1 for the purpose of realizing the personal claim against Defendant 1, and Defendant 1, 4, and Defendant 2 were to use the shares in the repayment of Defendant 1’s personal debt.

At around April 23, 2003, Defendant 1, 4, and Defendant 2, who managed Nonindicted Company 1 in the vicinity of Nonindicted Company 1, even though they were to maintain and manage the company’s property and not transferred the company’s property to a third party for personal repayment of the company’s personal debt, Defendant 1, Defendant 4, and Defendant 2, as indicated in [Attachment 12, such as the shares in Nonindicted Company 5’s limited liability (52.8%) owned by Nonindicted Company 1 and the shares and claims equivalent to KRW 6,875,38,826 of the above Nonindicted Company 5, as indicated in [Attachment 12, such as the shares in Nonindicted Company 5’s limited liability (52.8%), were arbitrarily transferred to Defendant 3, thereby causing property damage equivalent to the same amount and acquiring property profits equivalent to the same amount.

B. Determination

The above facts charged constitute a case where there is no proof of a crime for the same reason as stated in the above 3.f. (3) (b), and thus, a not-guilty verdict should be made pursuant to the latter part of Article 325 of the Criminal Procedure Act, but as long as the court found the defendant guilty of a crime of occupational breach of trust in the judgment with a single crime,

2. Violation of the Securities and Exchange Act against Defendant 2

A. Summary of the facts charged

Defendant 2:

(1) in collusion with Defendant 1, 4, and Nonindicted 4 and Nonindicted 13:

Around March 2003, in providing capital increase in an amount equivalent to KRW 6,189,97,00,000 out of the total amount of KRW 189,97,50,00 in a third party’s allocation method, the fact is that: (a) deposit of the corporate fund, etc. in a separate fund for capital increase with a lump sum and immediately after the registration of capital increase was made; and (b) there is no intention or purpose to raise funds, notwithstanding the fact that there is no intention or purpose to withdraw

On March 25, 2003, when submitting to the Financial Supervisory Commission the securities exchange statement equivalent to KRW 6,189,997,000 for capital increase, false entry is made with regard to material facts in the securities exchange statement, stating that “the class and number (1,125,454 shares in registered common), the issue value of new shares (5,500 won), the operating fund for the purpose of financing 6,154,97,000 won, and other 35,000,000 won,”

(2) in collusion with Defendant 1, 4, and Nonindicted 4, Nonindicted 13, and Nonindicted 14:

(A) Around April 11, 2003, when offering capital increase of KRW 6,189,997,00, among them, KRW 189,97,500 among them, the amount of capital increase of KRW 189,97,50 is deposited in the stock payment account of Nonindicted Co. 1 established at a temporary Dondong branch of the Agricultural Cooperatives Federation, and after the completion of the registration of the capital increase by obtaining a certificate of deposit of the stock payment from the above bank, the payment of the stock is deemed to have been made by withdrawing the total amount on April 14, 203 and returning it to Nonindicted Co. 14

(B) On the same day, the above temporary border and Suwon District Court: (a) had a registry official, as mentioned above, submit documents necessary for the registration of capital increase with consideration, such as “certificate of capital increase,” etc., to the registry official, who is unaware of the fact that there was no change in the number of shares and the total amount of capital, and (b) had the above registry official enter false facts in the above commercial register, which is the original notarial deed, on the same day; and (b) had the above registry official keep the above commercial register in which there was false facts as to the total number of shares generated and the total amount of capital of Nonindicted Company 1; and (c) had the above registry official keep the above commercial register in which there was false facts at the same time.

B. Determination

The above facts charged constitute a case where there is no proof of a crime for the same reason as stated in the above 3. A. (2) (c) 1, and thus, it should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, as long as the crime of violating the Securities and Exchange Act, the violation of the Commercial Act, the crime of false entry in the original copy of a notarial deed, and the crime of uttering of the notarial deed,

Judges Ko Young-han (Presiding Judge)