Defendant

Lee Jong-ho (Court of Second Instance), Lee-ju (Court of Second Instance)

Law Firm Jeong-sung et al.

A defendant shall be punished by imprisonment for not less than eight months.

109,272,685 won shall be additionally collected from the defendant.

1. Facts of premise;

피고인은 2003. 4.경부터 2007. 5.경까지 증권 포털사이트 ▒▒▒에서 근무하였고, 2008. 8.경부터 2009. 11.경까지 ∈∈∈∈증권 주식형 상품관리시스템 외주업체인 ●●●●●에서 근무하였고, 2009. 12.경부터 2013. 3.경까지 ○○○ ○○○○ TV 방송제작팀(이하 ○○○ ○○○○ 증권방송이라 한다)에서 애널리스트로 근무하며 생방송 증권방송인 △△△△, □□□ 등 프로그램에 출연하여 유망종목을 추천하는 업무를 담당하였다.

피고인은 2007. 8.경 ‘(책이름 생략)’이라는 주식 투자 관련 서적을 출판하여 판매하였고, 2005년경 회원 2,300명인 네이버 카페 ‘(카페명 1 생략)’를 운영하면서 회원들을 상대로 주식 종목에 관한 상담을 하고, 2009. 7.경부터 현재까지 회원 710명인 네이버 카페 ‘(카페명 2 생략)’를 운영하면서 회원들을 상대로 주식 종목에 관한 추천을 하고, ★★ ★★★ TV에 출연하여 1년 이상 시황분석 방송을 하고, 증권 관련 인터넷 방송인 ▼▼▼과 ▒▒▒에서 2년 동안 ‘(프로그램명 생략)’ 방송을 진행하고, ■■■■■■■의 공동대표로서 법인을 운영하고, 공소외 8 주식회사를 창업하여 운영하고, ★★★★TV 실전 VIP센터에서 활동하고, 수 회에 걸쳐 주식투자 관련 강연회를 개최하는 등의 경력이 있는 한편, 최근까지 ○○○ ○○○○ 증권방송의 ‘△△△△’, ‘□□□’ 등의 프로그램에서 총 2,246회에 걸쳐 유망종목을 추천하는 등으로 증권업계에서 인지도와 영향력을 가지고 있었다.

The Defendant, while contributing to the ○○○○○○○○ Securities Broadcasting’s “△△△△△△△” and “△△△△” program, was aware that the securities industry had knowledge and influence as above, and that the ○○○○○ Securities Broadcasting was one of the representative cable TV economic broadcasts and recommended the purchase of a specific item by contributing to the said securities broadcast, then the general investors’ purchase price was introduced, thereby resulting in the rise in the short term or continuing the rise in the stock price after the completion of the securities broadcast.

In order to obtain profit from the market price by using the above opportunity, the Defendant used a borrowed account prior to the securities broadcasting to purchase a certain item prior to the use of the borrowed account, and used the securities broadcasting without hiding the fact, and recommended the purchase price of the general investors who listened to the broadcasting as promising items on the basis of subjective analysis or exaggeration of the items without any accurate analysis of the items or confirmation of the information, and led to the occurrence of the purchase price of the general investors who listened to the broadcasting, with the intention of realizing the market price profit by receiving the selling order prior to the broadcasting, making the sales contract enter into during the broadcasting channel, or selling it immediately after the completion of the securities broadcasting.

2. Criminal facts;

No one shall disseminate a rumor or use a deceptive scheme with an intention to use an unfair means, scheme, or trick or to cause a fluctuation in the market price of financial investment instruments or to make any other transaction, in connection with trading or other transaction of financial investment instruments.

Nevertheless, around May 2, 2012, the Defendant purchased 14,619 shares of Nonindicted Incorporated Co. 3 (hereinafter “Nonindicted Co. 3”) that is scheduled to be recommended as promising issues from securities broadcasting to 14,619 shares by using the Defendant’s computer HTS system at the ○○○○○○○○○ Securities Broadcasting Office (hereinafter “○○○○○○○○○○○○○○”) (hereinafter “Nonindicted Co. 3”), 14,61 shares, 51, and 51,72,570 shares, and then, purchased 30% of the average purchase price of 30% of the shares, 60% of the shares, 30% of the average purchase price of 30% of the shares, 4% of the shares of Nonindicted Co. 3’s shares, 60% of the total purchase price of 30% of the shares, and 60% of the average sale price of 30% of the shares to 300○○ Securities Broadcasting Co.

In addition, from April 8, 2010 to December 7, 2012, the Defendant acquired the unjust enrichment of KRW 109,272,685 in total over 117 times with respect to the total of 90 items, such as Nonindicted Incorporated Company 4, etc., as indicated in the list of crimes (hereinafter referred to as “judgment 20”) by the said method (Attachment 1).

Ultimately, the Defendant acquired the unjust enrichment of KRW 109,272,685 in total by using a deceptive scheme for the purpose of facilitating a fluctuation in the market price of shares at the same time, while using an unfair means, scheme, or trick in connection with the sale and purchase of shares.

1. Partial statement of the defendant;

1. Each prosecutor's protocol concerning the accused (in particular, 1438 evidence records among the interrogation protocol of the first suspect examination, 1497 evidence records among the interrogation protocol of the second suspect examination, 1949, 1951-1953, 1961, 1963, 2277 pages among the interrogation protocol of the third suspect examination);

1. Each written answer to the defendant;

1. The prosecutor’s statement concerning Nonindicted 5

1. The statement of Nonindicted 6

1. Each investigation report (Evidence List 9, 10, 11, 12, 14, 15, 18, 20, 21, 22, 25, 29, 30, 32, 33, 34, 39, 44, 45, 52, 56, 61, 69);

1. Notification of persons suspected of the Financial Services Commission, investigation results of unfair trade and disposition thereof;

1. Attachment (No. 19 of the evidence list), attachment of a copy of broadcast content on the website, and attachment of a part of the details of securities account in the name of Nonindicted 7 (the above evidence list No. 35, 36);

1. ‘선행매수 추가종목 엑셀 정리 첨부’ 등 증거목록 39번의 수사보고 각 첨부자료(증거목록 40~43번), ◆◆◆전자 등 관련 방송내역 등 첨부(증거목록 46번)

1. Each investigation report set forth in No. 52 of the evidence list, including “the attachment of program cppers and daily volume (revision)”, each accompanying document (Evidence No. 53-55), each accompanying document (Evidence No. 57-60), each accompanying document (Evidence No. 57-60), and each accompanying document of the evidence list No. 61 of the evidence list, such as “the attachment of the content of recommendation for broadcast for the items added to prior purchase” (Evidence No. 62-64), each accompanying document (Evidence No. 666), and part of the trading document (Evidence No. 71), each accompanying document of unjust enrichment calculation (Evidence No. 71).

1. Article applicable to criminal facts;

inclusive, Articles 43(1)8 and 9, 178(1)1 and (2) of the former Financial Investment Services and Capital Markets Act (amended by Act No. 11845, May 28, 2013; November 29, 2013; hereafter referred to as the “former Financial Investment Services and Capital Markets Act”)

1. Additional collection:

Articles 10(1) and 8(1) of the Act on Special Cases concerning Regulation and Punishment of Criminal Proceeds Concealment

○ Scope of the recommended sentence: 2 years to 6 years (a) (a)

○ The Defendant, by abusing an opportunity to contribute to securities broadcasting to the public trust, did not confirm the appropriateness of the broadcast content, did not properly and repeatedly maintain profit margin on a small scale, traded stocks through prior trading over a long time by using an account in another person’s name. During the process of selecting and recommending theme items or items of the same kind in accordance with the items purchased prior to the process, the Defendant used unjust enrichment to repeatedly recommend the same item or to make a promise to sell orders in advance to the items purchased prior to the broadcast, and distorted and altered the market price of securities by using a planned and professional method, such as making broadcast to include the purchased stocks in the recommended items or by selecting and recommending the items of the same kind in accordance with the items purchased prior to the broadcast process, or making broadcast to the price increase after the broadcast. In addition, on September 2012, the Defendant did not stop the Defendant with knowledge that the Financial Supervisory Service commenced an investigation into the suspicion of unfair trading by the Defendant.

On the other hand, the Defendant, other than broadcasting, did not recommend purchase to the general public via the Internet, and did not recruit paid members of the Internet car page, and did not use the means of collusion, trade or most trade. The Defendant is a first offender without criminal record.

Such circumstances shall be taken into account, and the punishment as ordered shall be determined beyond the scope of the recommended sentence, taking into account the circumstances of the latter.

○ 이 사건 공소사실에서 [별지2] 범죄일람표(판결문 9쪽 이하) 중 판시 [첨부1] 범죄일람표(판결문 20쪽 이하) 기재와 같이 “피고인이 2010. 4. 8경부터 2012. 12. 7.경까지 90개 종목, 117회에 걸쳐 109,272,685원을 취득하였다”는 것을 초과하는 부분(이는 피고인이 공소외 1 계좌를 이용하여 [별지2] 범죄일람표 중 ◇◇◇◇◇, ☆☆☆☆, ▽▽▽▽, ◎◎◎◎◎◎, ◁◁◁◁, ▷▷▷▷▷, ♤♤♤♤, ◈◈◈◈, ○○, ♡♡♡♡♡ 10개 업체 주식을 거래한 부분에 해당하는바, 이하 ‘이 사건 초과 부분’이라 한다. 이 사건 초과 부분을 더하면 판시 범죄사실보다 기간의 시기는 2010. 1. 26.경, 종기는 2013. 1. 22.경, 총 종목 수는 100개, 총 거래 횟수는 137회, 합계액은 170,144,454원으로 각 늘어난다)하여 살펴본다.

○ The term “profit from a violation” under the proviso of Article 443(1) and (2) of the Financial Investment Services and Capital Markets Act refers to the profit earned by the violator in question. In a case where multiple persons jointly commit an unfair trade, such as manipulation, profit from the crime refers to the profit acquired by the whole accomplice who has participated in the crime, and it does not include profits accruing from the crime to a third party who has not participated in the crime (see Supreme Court Decision 2011Do3180, Jul. 14, 201).

○ Even if all the evidence presented in the instant case are comprehensive, it is difficult to recognize that the amount of profit in excess of the instant case (170,144,454 won - 109,272,685 won) was reverted to the Defendant or that Nonindicted 2 was an accomplice with the Defendant, and there is no other evidence to recognize that the actual owner of Nonindicted 1’s account, who acquired the above profit, did not constitute an accomplice with the Defendant. Therefore, even though the above “profit gained from the violation” does not constitute an element of criminal facts as indicated in the judgment, in light of the above legal principles, the Defendant cannot be charged with a crime as to the excessive portion of the instant case, including the above amount of profit 60,871,769 won.

Thus, the excessive portion of this case should be pronounced not guilty under the latter part of Article 325 of the Criminal Procedure Act because it constitutes a case where there is no proof of crime. However, as long as the court found the defendant guilty of violating the Financial Investment Services and Capital Markets Act, the court shall not render a separate verdict of innocence.

[Attachment]

Judges Lee Sung-sung