The meaning of "profit derived from a violation" under the proviso of Article 207-2 of the former Securities and Exchange Act and the method of calculating such profit.

[1] Article 207-2 of the former Securities and Exchange Act (amended by Act No. 6695 of April 27, 2002) (see current Article 207-2 (1))

Supreme Court Decision 2002Do1855 Decided July 26, 2002 (Gong2002Ha, 1741) Supreme Court Decision 2002Do185 Decided June 14, 2002 (Gong2002Ha, 2159) Supreme Court Decision 2001Do606 Decided December 12, 2003 (Gong2004Sang, 192)

Defendant 1 and three others

Defendants

Attorney Lee Young-young et al.

Seoul District Court Decision 2002No2509 Delivered on October 30, 2002

All appeals are dismissed.

1. We examine the Defendants’ grounds of appeal.

A. In full view of the adopted evidence, the court below held that the defendants conspired to operate the market price of Won-gu Co., Ltd. as stated in Paragraph (1) of the judgment of the court below, and that Defendants 2 and 3 operated the market price as stated in Paragraphs (2) and (3) of the judgment of the court below, and all of them were in violation of the Securities and Exchange Act. In light of the records, the above fact-finding and decision of the court below are just, and there are no errors in the misapprehension of facts against the rules of evidence or in the misapprehension of the legal principles as to the violation of the Securities and Exchange Act and the accomplice, as otherwise alleged in the ground of appeal. The entries in the facts charged of this case in the

B. The term "profit accrued from a violation of the proviso of Article 207-2 of the former Securities and Exchange Act (amended by Act No. 6695 of Apr. 27, 2002; hereinafter the same)" refers to the profit accrued from the violation, i.e., the gross income from the transaction, i., the difference between the profit accrued from the violation and the gross income from the transaction. Therefore, the profit accrued from the actual transaction refers to the net trading profit remaining after deducting the transaction cost, such as purchase commission, sale commission, and securities transaction tax (including special tax for rural development) from the total sales amount related to the actual transaction, in addition to the total purchase amount, from the total sales amount in relation to the transaction, and the calculation of the profit refers to the profit accrued from the specific transaction after the commencement of the market price manipulation and the appraised profit of the stock subject to the market price manipulation which were held at the time of the completion of the market price manipulation (see, e.g., Supreme Court Decision 2002Do1256, Jun. 14, 2002).

In calculating the ‘profit accrued from the violation of the proviso of Article 207-2 of the former Securities and Exchange Act’, without considering the shares held by the Defendants prior to or even after the date of the commencement of the market price manipulation, the court below calculated the amount calculated by deducting transaction expenses from the amount calculated by multiplying the total quantity during the market price manipulation period by the difference between the average sale price and the average purchase price. In light of the above legal principles, the court below shall be deemed to be erroneous in calculating the profits accrued from the Defendants’ respective violations, but it shall not affect the conclusion of the judgment in this case where only the Defendants appealed in favor of the Defendants. Accordingly, the court below erred by misapprehending the legal principles as to the violation of the Securities and Exchange Act, which affected the conclusion of the judgment, and thus, cannot be accepted.

2. In the instant case where the punishment of imprisonment with prison labor for less than 10 years and a fine has been imposed concurrently on Defendant 2, the grounds that the amount of punishment against the above accused is unreasonable cannot be a legitimate ground of appeal.

3. Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jae- Jae (Presiding Justice)