Defendant 1 and four others

Defendants

Kim Jong-gu, mission-based (prosecutions), and motion-based (public trial)

Law Firm Sohn, et al.

Seoul Southern District Court Decision 2015Gohap69, 112 (merged), 113 (Consolidated), 127 (Consolidated) Decided November 17, 2017

The judgment of the court below is reversed.

Defendant 1 shall be punished by imprisonment for three years and by fine for three million won, by imprisonment for three years and by imprisonment for three years, by imprisonment for Defendant 2, by imprisonment for one year and six months and fine for three hundred thousand won and by imprisonment for three years, by imprisonment for three years and six months, by imprisonment for one year and six months, by imprisonment, by imprisonment for four years and by imprisonment for one year and six months, respectively.

When Defendant 1 and Defendant 3 fail to pay each of the above fines, each of the above Defendants shall be confined in a workhouse for a period calculated by converting KRW 750,000 into one day.

However, with respect to defendants 3 and 5, the execution of each of the above imprisonment for three years from the date this judgment becomes final and conclusive shall be suspended.

From Defendant 2, KRW 1,642,672,541, KRW 103,634,539 from Defendant 4, and KRW 609,159,515 from Defendant 5 shall be additionally collected.

The above fines and additional charges shall be imposed on the defendants, respectively.

1. Summary of grounds for appeal;

A. Defendant 1

1) misunderstanding of facts and misapprehension of legal principles

A) Part on market price manipulation in 2012

(1) Invitation to commit a market price manipulation crime

As stated in paragraph (2) of the facts constituting the crime indicated in the lower judgment, the Defendant did not have conspired with the other Defendants in April 2012, 2012. Even if there was a conspiracy with Nonindicted 3 from June 13, 2012, which paid money to Nonindicted 3, the Defendant is liable only for the crimes committed by Nonindicted 3 after June 13, 2012.

(2) The unjust enrichment gained from the manipulation of market price manipulation

① Since the sum of KRW 140,065,610, and KRW 500,00,000 paid on a check, etc. around June 2012, which the Defendant delivered to Nonindicted 3, was the expense of the Defendant, the said expenses should be additionally deducted from the profits accrued from the securities account in the name of Nonindicted 4 and Nonindicted 5 (hereinafter “Nonindicted 2”) through the securities account in the name of Nonindicted 5, and the said expenses should be deducted from the gains of KRW 26,00,00,000 for the unit purchase cost exercised in the name of Nonindicted 4, Nonindicted 5, and Nonindicted 6. ② Of the stocks entered in the securities account in the name of Nonindicted 5 and Nonindicted 6, the profits related to KRW 1,350,943, calculated as payment in kind at KRW 676 per week, should be calculated again on the basis of the delivery amount calculated as KRW 676 per week.

B) Part of the market price manipulation in 2013

As stated in paragraph (3) of the facts constituting the crime in the judgment below, the Defendant did not have conspired with Nonindicted 3 and Nonindicted 3 in 2013, such as requesting the manipulation of market prices or promising to distribute profits.

C) Part of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

In light of the corporate situation around August 2012 of Nonindicted Co. 1 (hereinafter “Nonindicted Co. 1”) around August 2012, it is determined that it is possible to sell at least 20 billion won within one year and repay the borrowed money. As such, the Defendant did not have any criminal intent to defraudation, and the Defendant did not deceiving the victim regarding the repayment power or the use of the borrowed money of Nonindicted Co. 2.

2) Unreasonable sentencing

The punishment of the court below against the defendant (a three-year imprisonment and a fine of 300 million won) is too unreasonable.

B. Defendant 2

1) misunderstanding of facts and misapprehension of legal principles

A) Part on market price manipulation in 2009

(1) Invitation to commit a market price manipulation crime

Before October 2009, the Defendant either conspiredd with Nonindicted 7 and Defendant 3, etc. to commit a crime subject to market price manipulation in 2009 or did not participate in such crime as stated in paragraph (1) of the facts constituting the crime as indicated in the judgment of the court below.

(2) An account used in the manipulation of market price;

Of the 82 securities accounts in the name of Nonindicted 8, etc. as stated in the facts constituting the crime in the judgment below, the securities account in the name of 28 persons, such as Nonindicted 9, etc. among the 82 securities accounts in the name of Nonindicted 8, etc., is not used

(3) Possibility of a fluctuation in market price due to a market manipulation crime

In 2009, market price manipulation orders, etc. stated in attached Table I in the judgment of the court below concerning the manipulation of market price manipulation do not constitute a sale that is likely to change the market price.

B) Part on market price manipulation in 2012

(1) Invitation to commit a market price manipulation crime

As stated in paragraph (2) of the facts constituting the crime in the judgment below, there was no conspiracy between Defendant 4 and Defendant 2012, and Defendant 4 merely used Defendant 3, etc. as a simple area, and thus, not only Defendant 3 but also Defendant and Defendant do not constitute a conspiracy relationship. Thus, Defendant 4’s act is not liable as a co-principal.

(2) An account used in the manipulation of market price;

Among the 30 securities accounts in the name of Nonindicted 10, etc. as stated in the facts constituting the crime in the judgment below, the securities account in the name of nine, such as Nonindicted 11, etc., is not used for the manipulation of market price in 2012.

(3) Possibility of a fluctuation in market price due to a market manipulation crime

Market price manipulation order, etc. listed in Annex II in the judgment of the court in 2012 is not a sale that is likely to cause a change in the stock price.

(4) The unjust enrichment gained from the manipulation of market price manipulation

① From the profits that Defendants and accomplices acquired through the manipulation of market price in 2012, the share price increase due to the instant Articles, including the production of ○○○○ and the commercial production of △△ iron mining, ought to be deducted. ② Since unjust enrichment with respect to the instant sets exercised before May 2, 2012 includes the portion of the share price increase due to the expectation for the cancellation of the investment attention of Nonindicted Company 1, the closing price shall be calculated at the acquisition price on April 30, 2012. ③ Nonindicted 12; ③ Nonindicted 1,761,90,136; Nonindicted 136; and Nonindicted 126,95,924; and Nonindicted 126,924; and Nonindicted 126,924; and Nonindicted 2365; and the portion of the unjust enrichment with respect to the said sets exercised by Nonindicted 14; and ③ Nonindicted 36,281; and the portion of the amount of profits that Nonindicted 125,297; and

2) Unreasonable sentencing

The punishment of the court below against the defendant (two years of imprisonment, additional collection 1,642,672,541 won) is too unreasonable.

C. Defendant 3 note 1

The sentence of the court below against the defendant (the 3 years of suspended execution and the 300 million won of fine in June of one year and six) is too unreasonable.

D. Defendant 4

1) misunderstanding of facts and misapprehension of legal principles

A) Invitation to commit a market price manipulation crime

As stated in paragraph (2) of the facts constituting a crime in the judgment below, there was no conspiracy with the remaining Defendants in sequence through Defendant 3 or Defendant 3 to commit a market price manipulation crime in 2012.

B) Calculation of a surcharge

① The lower court’s profits in KRW 159,230,996, which the Defendant recognized in 2012, did not include the commission, transaction tax, KRW 6879,978, and KRW 17, Nonindicted 18, and KRW 93,292,183 in the account in the name of Nonindicted 19. ② The Defendant traded the shares of Nonindicted 1 with the funds of Nonindicted 20 and returned KRW 22 million out of the profits accrued therefrom to Nonindicted 20. As the Defendant traded the shares of Nonindicted 1 with the funds of Nonindicted 20 and returned the profits accrued therefrom, KRW 22 million should be deducted from the profits accrued by the Defendant.

2) Unreasonable sentencing

The punishment of the court below against the defendant (one year of imprisonment, additional collection of 159,230,996) is too unreasonable.

E. Defendant 5

1) misunderstanding of facts and misunderstanding of legal principles concerning the calculation of additional collection charges

① In calculating the profits earned by the Defendant, the profits earned by Nonindicted 15 in the transaction of 776,397 ought to be calculated and deducted based on KRW 1,324,00. ② Since Nonindicted 15, who was recognized by the lower court as owned by the Defendant, is the stocks purchased from the Defendant and owned by Nonindicted 15, which were possessed by the Defendant, the profits accrued therefrom should be excluded from the profits earned by the Defendant. ③ Since the stocks of Nonindicted 1, 100,000,000 shares of Nonindicted 1, which were converted from the exercise of the network on April 25, 2012, are owned by Nonindicted 15, which were transferred to the exercise of the network on April 25, 2012, the profits accrued therefrom should be excluded. ④ To exclude the profits earned by the Defendant in relation to the remaining 800,000 shares, the closing price on the date of the market price manipulation or the event at the lowest acquisition price after January 13, 2012.

2) Unreasonable sentencing

The punishment of the court below against the defendant (three years of suspended execution in June of one year and six months of imprisonment, and one billion won of additional collection) is too unreasonable.

2. Judgment on the mistake of facts and misapprehension of legal principles by Defendant 1

A. Part on market price manipulation in 2012

1) Invitation to commit the manipulation of market price

A) The judgment of the court below

The lower court determined that, on April 2012, as indicated in Article 2-A(A) of the facts constituting the crime of the lower judgment, the Defendant conspired with Nonindicted 3 and then participated in the market price manipulation as indicated in the criminal facts of the lower judgment, such as Defendant 2, Defendant 3, Defendant 5, and Nonindicted 3, and Nonindicted 21, etc., by artificially supporting the share price of Nonindicted Company 1 and disposing of the shares acquired by the event, etc., and thereby acquiring profits from the event; Nonindicted Company 1 recognized the fact that it conspireds with the Defendant to resolve the shortage of funds by preparing the company operation funds, etc. through the payment of the event price; and in full view of the following circumstances, it was reasonable to view that the Defendant engaged in the market price manipulation as indicated in the criminal facts of the lower judgment, in sequence with the other Defendants, by providing the price manipulation funds to Nonindicted 3 and distributing profits by providing

① The Defendant paid Nonindicted 3, who is the market price manipulation force, KRW 350 million in cash, KRW 150 million in total, and KRW 500 million in check with the market price manipulation fund.

In the event that Nonindicted Company 1 was not released from the category of attracting investment attention on April 30, 2012, and the share price drops, Nonindicted 3, who used a warranty with Nonindicted 13, before that time, anticipated losses due to the share price drop, and requested Defendant 2 to meet the Defendant at the beginning of May 2012, and demanded Defendant 2 to look at and resist. At around that time, Nonindicted 3, at Defendant 2’s office, was in contact with Defendant 2, Defendant 5, etc., and Nonindicted 3. At that time, Nonindicted 3 was considered to suffer losses due to the share price drop, and demanded KRW 500,000,00,000 to pay for the share purchase expenses so that the share price can be raised through the share collection to compensate for losses.

On June 13, 2012, Defendant 5, upon receipt of the Defendant’s instructions from Nonindicted 22, paid to Nonindicted 3 a sum of KRW 350 million at the face value, which is the funds of Nonindicted Company 2. Around that time, Nonindicted 23 paid KRW 150 million in cash from Nonindicted 23, and Nonindicted 22, upon receipt of the Defendant’s instructions, sold a sum of KRW 110 million in the shares of Nonindicted Company 1 owned by Nonindicted Company 2 to Nonindicted 23 and returned KRW 150 million to Nonindicted 23 (in conclusion, the above KRW 150 million was paid to the Defendant to Nonindicted 3).

On June 13, 2012, when receiving KRW 350 million from Defendant 5 on June 13, 2012, Nonindicted 3: (a) prepared and issued a written confirmation (Evidence No. 5 of Evidence No. 3986 pages) stating that “The amount was received to purchase the shares of Nonindicted Company 1 with the friendship shares; (b) settlement in cash after shares or sales are made on the date agreed between the parties; and (c) if the amount falls short of the amount to be distributed in the course of settlement, the settlement shall be made in preference to 50% of the sales proceeds after the conversion into the unit that would be distributed

㉣ 위 확인서의 내용과 2012. 6. 13.경에는 공소외 1 회사의 주가가 급상승하고 있어(2012. 4. 30. 공소외 1 회사의 주가는 980원이었고 2012. 5. 9. 660원까지 하락하였으나 2012. 6. 13.에는 1,040원으로 상승하였다. 당시 공소외 3은 워런트를 행사하여 전환한 주식들을 매각하지 아니한 채 대부분 보유하고 있었다) 공소외 3이 5억 원을 요구하던 때와는 달리 주가 하락에 따른 손실금을 지급해야 할 상황이 아니었다. 이러한 점을 감안하면, 피고인이 공소외 3에게 지급한 금원은 시세조종 자금으로 판단된다.

② The Defendant received 50% of the profits accrued from the exercise of the set of Nonindicted 12 and Nonindicted Company 2 (titled Nonindicted 4 and Nonindicted 5), an investor, who was the investor in custody of the Defendant from Defendant 5, distributed 50% of the profits accrued therefrom to stocks, and divided profits accrued from manipulation with the rest of the Defendants (Evidence No. 5, No. 4006, No. 4007).

③ Around July 2012, the Defendant paid Nonindicted Company 2’s investment in KRW 5 billion to Nonindicted Company 1’s B 5 billion (the initial maturity was extended on January 201, 2012, but most except for part was extended on July 2012). Around that time, Nonindicted Company 1’s investment was repaid with the funds of Nonindicted Company 1 owned by Nonindicted Company 2 to repay the funds of Nonindicted Company 1, which was deposited in the event payment, and thus, the Defendant recommended Nonindicted Company 1 to sell part of the investment funds with Nonindicted Company 1’s stocks (which was settled at a price lower than the market price at that time, and was paid at a price lower than the market price at that time) and did not sell them (Evidence 5 rights 38999). Defendant appears to have been likely to have sold the stocks to investors at a certain level in order to make repayment of the funds to investors or to make the stocks of Nonindicted Company 1, 2012.

④ From May to June, 2012, the Defendant introduced Nonindicted 24 and Nonindicted 25, a market price manipulation force, via Defendant 3, via Defendant 3. Moreover, Nonindicted 26, a different market price manipulation force, was met.

B) Determination of the immediate deliberation

In a case where two or more persons are co-offenders who are jointly engaged in a crime, the conspiracy does not require any legal punishment, but is only a combination of intent to realize the crime through the joint processing of a certain crime. Even if there was no process of the whole conspiracy, if the combination of intent is made successively or implicitly through several persons, the conspiracy relationship is established, and even those who did not directly participate in the act of the conspiracy are criminal liability for the other co-principals. In addition, such conspiracys or conspiracys constitute the crime of the crime, and there is strict proof to acknowledge it. However, if the defendant recognizes the facts directly involved in the act of the conspiracy but denies the criminal intent, it is inevitable to prove it by the method of proving indirect facts having substantial relevance with the criminal intent due to the nature of the object, and what constitutes indirect facts having considerable relevance should be reasonably determined based on normal empirical rule (see, e.g., Supreme Court Decision 2006Do479, Jul. 4, 2006). 206.

Comprehensively taking account of the evidence duly admitted and examined by the lower court and the lower court as well as the following circumstances acknowledged by the instant pleadings, the Defendant, through Defendant 5, conspired to commit a crime in consecutive order through Defendant 2 and 2012, and Defendant 2, through Defendant 3, Defendant 4, and Nonindicted 3, and Nonindicted 21, through Defendant 2, made a public collusion with Defendant 3, Defendant 4, and Nonindicted 3, and Nonindicted 21 through Defendant 2, following the public invitation for a crime in 2012 with Defendant 3, Defendant 4, and Nonindicted 3, and Nonindicted 21. Therefore, even if the Defendant did not direct a direct manipulation to Defendant 2, Nonindicted 3, and Defendant 4, the method of committing a crime committed by Nonindicted 3, Defendant 3, and Defendant 4, the lower court’s judgment was justifiable in that it did not err by misapprehending the legal doctrine and by misapprehending the legal doctrine.

① From April 19, 2012 to June 27, 2012, approximately KRW 1,4180,000 (including KRW 1,1,00,000,000, which was transferred to Defendant 2) of Nonindicted Company 1’s warranty (which was 32,33 pages of the original judgment of the lower court on April 2976) was converted to stocks. During that process, Nonindicted Company 1 was paid KRW 6,750,00,00 as the price for the event of the set, and the obligation to borrow KRW 500,000,000 to Defendant 5 was extinguished, and Nonindicted Company 1 got enormous profits.

② Nonindicted Co. 2 was invested by 5 billion won from 18 investors around January 201, but only part of the investment principal (90 million won as of the investment principal) was due and postponed on January 201, 201, and was placed in the place where to repay the principal and interest of 4.1 billion won until July 2012. Nonindicted Co. 2 received approximately KRW 6.5 billion from Nonindicted Co. 1’s exercise price, and received approximately KRW 3.9 billion out of KRW 6.5 billion from KRW 3 billion from KRW 1900,000,000 from Nonindicted Co. 2, 5, and KRW 990,000 from KRW 30,000,000,000 from KRW 19,50,000,000 from KRW 18,000,000,000 from KRW 3.5 billion,000,000 from KRW 9,000,00.

③ Work sets of Nonindicted Company 1, which were exercised until April 25, 2012, were KRW 50 million in total, and KRW 2.5 billion in total, among which the work sets were paid to Nonindicted Company 1, it was used as investment funds to Nonindicted Company 1 28 (Article 2.5 billion in the first 2.5 billion in the first 2.5 billion capital, but it seems that Nonindicted Company 1 had invested KRW 2.5 billion in the second 2.5 billion in the initial 2.5 billion in the initial 2.5 billion in the initial 2.5 billion in the exercise price, and Nonindicted Company 1 was not 2.5 billion in the exercise price after April 25, 2012, and Nonindicted Company 1 was 200 million in the exercise price, and Nonindicted Company 2 was 100 million in the total 1.5 billion in the exercise price after June 10, 2012, and Defendant 2 was 100 million in the exercise price.

④ On April 19, 2012, the Defendant received a report from Defendant 5 prior to the event of the Dwork in Nonindicted 12’s name, and knew that Defendant 2 managed the share price of Nonindicted Company 1 through Nonindicted 3. The Defendant was able to manage the share price by means of preventing the mass disposal of the shares. As such, the Defendant did not know that, around May 2012, the share price management via Nonindicted 3 would mean illegal methods such as the manipulation of share prices, etc., but he did not receive a report from Defendant 5 to the effect that the share price management by Nonindicted 2 would have been conducted by means of preventing the mass disposal of shares. As such, it was not possible for Defendant 2 to prevent the mass disposal of shares through Nonindicted 3 (i.e., the share price decline at least after April 30, 2012), but did not control the share price decline, and (ii) the Defendant did not know that the share price decrease was formed in the normal market by Nonindicted 5.

⑤ According to the Defendant’s assertion, around April 2012, Nonindicted Company 1’s shares were at the time when the share price increased due to the expectation to cancel the issue of attracting investmentism. Nevertheless, it was difficult for Defendant 2 to attract more than 1.5 billion won (3 million won) with the cost of exercising the set until April 25, 2012. Accordingly, the Defendant was unable to attract Nonindicted Company 12’s funds by attracting one billion won and allowing the Defendant to exercise two billion won. As such, from around April 25, 2012 to around April 25, 2012, it was difficult to expect to attract a soft investor without an active share price, and the situation arose more worse since May 2, 2012, and Defendant 201, and Defendant 2 was also aware of the Defendant’s intent to manage the funds by taking advantage of the aforementioned circumstances, and the Defendant’s intent to manage the funds more clearly from around 201 to around 25, 2012.

④ Even at the beginning of May 2012, the Defendant did not deviate from the public bid relationship with Nonindicted 3, Defendant 2 and Defendant 5, but rather paid the price manipulation fund to Nonindicted 3. The Defendant used Nonindicted Company 2’s funds to obtain gains from the market price gains by exercising a total of 2.6 million share of the sets in the name of Nonindicted 4, etc. by using Nonindicted Company 2’s funds. Moreover, the Defendant was urged from May 2, 2012 that he had an intention to jointly process the market price manipulation.

This part of the defendant's assertion is without merit.

(2) unjust enrichment gained from market price manipulation;

A) The portion of KRW 120,000 paid to Nonindicted 3 and Nonindicted 3 out of the shares acquired by exercising a warranty in the name of Nonindicted 4

Comprehensively taking account of the evidence duly adopted and examined by the court below and the trial court, it is acknowledged that the 120,065,610 won (Evidence No. 5,411, 4112, 4116, 4118 pages) was released to the securities account in the name of Nonindicted Co. 2 in the name of Nonindicted Co. 4 by Nonindicted Co. 4, 120 out of the shares deposited in Nonindicted Co. 4’s securities account (Evidence No. 5,411, 4112, and 4116, 418), and the Defendant paid the total amount of KRW 500,00 from Nonindicted Co. 2’s capital to Nonindicted Co. 3 as seen earlier.

The Defendant asserts that the Defendant’s total sum of KRW 640,065,610, paid by Nonindicted Company 2 in relation to the criminal conduct of manipulation in 2012, should be deducted from the profits earned by Nonindicted Company 2. However, in a case where multiple persons jointly commit a crime of unfair trade such as manipulation, profits arising from the crime refers to the profits acquired by all the accomplices who participated in the crime, and it does not mean the profits earned by each criminal who participated in the crime (see Supreme Court Decision 2010Do7404, Feb. 24, 2011, etc.). Thus, the payment to Nonindicted 3, who is the accomplice of the criminal conduct in 2012, to Nonindicted 3, regardless of whether the name of the payment was distributed, does not deviate from the profits acquired by all the accomplices regardless of the delivery of the market manipulation fund, and such circumstance does not change the profits acquired by the use of the set in Nonindicted 4 and Nonindicted 5’s name (However, the Defendant’s punishment against the Defendant can be considered).

This part of the defendant's assertion is without merit.

B) Profits accrued from the securities account in the name of Nonindicted 5

The Defendant asserts that, inasmuch as Nonindicted 32, Nonindicted 29, Nonindicted 30, and Nonindicted 31, computed on the basis of the ex-factory amount in relation to the profits accrued from the securities account in the name of Nonindicted 5, as well as 86,177 shares calculated on the basis of the purchase price after being released from the securities account in the name of Nonindicted 2, Nonindicted 29, Nonindicted 29, Nonindicted 30, Nonindicted 33, and Nonindicted 31, calculated on July 20, 2012, were paid as KRW 676 per share to Nonindicted 32, Nonindicted 29, Nonindicted 30, and Nonindicted 31, who were the creditors of Nonindicted Company 2, were paid as the substitute payment for the borrowed debt, the profits accrued from the sale of the shares in question by Nonindicted 29, Nonindicted 30, and Nonindicted 31, are not the profits of Nonindicted Company 2, but should be further calculated on the basis of the ex-factory amount calculated as KRW 676 per share.

“Profit accrued from a violation” under the proviso of Article 443(1) and Article 443(2) of the Financial Investment Services and Capital Markets Act (hereinafter “Capital Markets Act”) refers to the profit gained by the violator, and the profit accrued to a third party who does not participate in the crime does not include profit accrued to the third party (see, e.g., Supreme Court Decision 2011Do3180, Jul. 14, 2011).

Comprehensively taking account of the evidence duly adopted and examined by the court below and the court of first instance, the defendant delivered 698,759 shares of the non-indicted 1 company to the non-indicted 32, the non-indicted 2's creditor, the non-indicted 39, the non-indicted 30, the non-indicted 33, and the non-indicted 31 in lieu of the borrowed debt (Evidence Record No. 389, 3902, 3981, or 3984 pages). Thus, the profits earned by the non-indicted 29, the non-indicted 30, and the non-indicted 31 from the sale of some of them are attributed to the non-indicted 29, the non-indicted 30, and the non-indicted 2's profits cannot be viewed as the profits of the non-indicted 2 company. Accordingly, the profits related to the 698,759 share on the day of delivery should be calculated based on the delivery amount of KRW 1,350 won on that day.

Defendant offered 698,759 shares to the obligees as payment in kind, and settled accounts at 676 won a week. However, the Prosecution stated in the Prosecutor’s Office that “the profits equivalent to the 1,350,943 shares (69,759 shares + 652,184 shares) including the 652,184 shares released from the securities account in the name of Non-Indicted 6 below should be paid as interest to the obligees” (Evidence No. 540,4094, Evidence No. 5094, the creditors who received payment in kind with Non-Indicted 1’s shares were paid as interest to the obligees, and there is no reason to believe that the interests accrued from the payment in kind should not be paid as interest accrued to the non-Indicted 2,52,184 shares, even if the creditors who received payment in kind were paid as interest accrued to the non-indicted 34,000 won, as well as interest accrued from the non-indicted 2’s payment in kind.

C) The portion of profits accrued from the securities account in Nonindicted 6’s name

The Defendant asserts that the profits earned by Nonindicted 35 and Nonindicted 36 from the sale of its shares are not the profits of Nonindicted Company 2, but the profits related to Nonindicted Company 35 and 184, calculated on the basis of the purchase price after the release from the securities account in the name of Nonindicted 35 and Nonindicted 36, and the total amount of KRW 282,919, and KRW 652,184, calculated on July 20, 2012, as the payment for the borrowed debt to Nonindicted 37, Nonindicted 36, Nonindicted 27, and Nonindicted 35, a creditor of Nonindicted Company 2, should be calculated on the basis of the transfer price calculated on the basis of the transfer price, and the profits derived from the sale of the shares in the name of Nonindicted 35 and Nonindicted 36 should be calculated on the basis of the transfer price calculated on the basis of the transfer price calculated on the 676 won per share.

Comprehensively taking account of the evidence duly adopted and examined by the court below and the trial court, the defendant delivered 652,184 shares to Nonindicted 37, Nonindicted 36, Nonindicted 27, and Nonindicted 35, the creditor of Nonindicted Company 2, a creditor of Nonindicted Company 35 (Evidence Record 5: 389 through 3902, 3981 through 3984) in lieu of payment for the borrowed amount (Evidence Record 5: 389 through 3902, and 3981 through 3984). Thus, the profits earned by Nonindicted 35 and Nonindicted 36 from the sale of some of them after the release are attributed to Nonindicted 35 and Nonindicted 36, and cannot be deemed as the profits of Nonindicted Company 2. Therefore, the profits related to 652,184 shares should be calculated on the date of release based on the ex-factory amount calculated as KRW 1,350 won per share, and the assertion that should be calculated as KRW 67

D) The part of the purchase cost of the unit converted in the name of Nonindicted 4, Nonindicted 5, and Nonindicted 6

The Defendant asserts that, around July 25, 2011, Nonindicted Co. 2, which purchased from Nonindicted Co. 38, Nonindicted 39, and Nonindicted 40 won per share from Nonindicted Co. 38, Nonindicted 39, and Nonindicted 40, which converted into Nonindicted Co. 4, Nonindicted 5, and Nonindicted 6’s name, KRW 260 million, in total, should be deducted from profits (the trial record No. 4194 through 4196, 4274).

The evidence submitted by the prosecutor alone cannot be readily concluded that Nonindicted Co. 2 acquired 2.6 million Won, which was converted to Nonindicted Co. 4, 5, and Nonindicted Co. 6’s name, free of charge. Thus, from the profits accrued from the securities account in Nonindicted Co. 4 and Nonindicted 5, each of the KRW 70 million (each of KRW 70 million) and KRW 120 million (1.2 million) from the profits accrued from the securities account in Nonindicted Co. 6’s name.

E) Sub-decision

Profit accrued from the securities account in the name of Nonindicted 4 is KRW 350,364,944, which deducts KRW 70,000 from the unit purchase cost of KRW 420,364,944 as recognized by the lower court (Evidence Record 5: 411, 4112, 416, or 418).

The profits accrued from the securities account in the name of Nonindicted 5 plus 16,38,950 won (86,177 note x 1,350 won) the ex-factory amount of 116,338,950 won (the total amount of 86,177 note x 1,350 won) out of 589,130,815 won, which the lower court recognized as 589,130,815 won, plus 526,00,000 won (Evidence 5,411,412,416, or 4118 of the evidence record).

The profits accrued from the securities account in the name of Nonindicted Party 6 plus 381,940,650 won (282,919 note x 1,350 won) the total sales volume of KRW 282,648,150 from KRW 995,697,703 as recognized by the lower court, after deducting the total sales volume of KRW 282,648,150 from the total sales volume of KRW 282,919, and the total sales volume of KRW 381,940 (282,912,416,418) the total sales volume of which is 120,000,000 won (the total sales amount of commission and transaction tax shall be 5,513,517 won) and the total sales amount shall be 84,990,203 won after deducting the total sales amount of KRW 120,000 from the Defendant.

Ultimately, the profits accrued from the securities accounts in Nonindicted 4, Nonindicted 5, and Nonindicted 6 are 1,761,355,147 won (350,364,944 won + 526,00,990,203 won + 884,990,203 won in this part of the facts charged, and thus, a not-guilty verdict should be rendered on the ground that the part exceeding KRW 1,761,35,147 in this part of the facts charged falls under the case where there is no proof of a crime. Nevertheless, the lower court found the Defendant guilty of the portion exceeding KRW 1,761,35,147 on the grounds as stated in its reasoning.

This part of the defendant's assertion is justified within the above scope of recognition.

[If the representative, etc. of a corporation commits a violation under Article 443 of the Financial Investment Services and Capital Markets Act with respect to the business of the corporation, the profits gained by the corporation from such violation shall also be included in the profits gained by the representative, etc. of the corporation (see, e.g., Supreme Court Decision 2011Do12041, Dec. 22, 2011). Here, it is reasonable to interpret that the representative of the corporation includes a person who actually represents the corporation in the course of operating the corporation (see, e.g., Supreme Court Decision 2011Do15056, Jul. 11, 2013). Comprehensively considering the evidence duly adopted and examined by the court below and the trial court, the defendant resigned the representative director of the non-indicted corporation on July 9, 2012, but thereafter, was actually represented by the non-indicted corporation 2 while actually operating the non-indicted corporation (the defendant acquired profits from the non-indicted corporation 400 billion won on behalf of the corporation).

B. Market price manipulation part in 2013

1) The judgment of the court below

In full view of the following circumstances, the lower court determined that the Defendant could fully recognize the fact that Nonindicted 3 participated in the market price manipulation as stated in paragraph (3) of the facts constituting the crime in the lower judgment by providing the Defendant with set and money to Nonindicted 3, even though he was aware of the fact that Nonindicted 3 would engage in the market price manipulation

① Around April 2013, when the Defendant provided a set equivalent to KRW 1860,00 for Nonindicted Co. 1 to Nonindicted Co. 3, the share price of Nonindicted Co. 1 was crossing 600 won (Evidence Nos. 2, 1610 pages). Nonindicted Co. 3’s exercise of a set that was provided by the Defendant was KRW 509 per share or KRW 640 per share, and was in a situation where Nonindicted Co. 1’s share price should be listed in order to gain profits from the sale of shares acquired by a set.

② The Defendant was aware that Nonindicted 3 was an accomplice who had manipulationd in order to support Nonindicted Company 1’s share price before Nonindicted 3 was detained in other cases in 2012.

③ The board of directors of Nonindicted Co. 1 resolved to receive investment from Nonindicted Co. 42 in China, in which Nonindicted Co. 41 had been induced. At the time, Nonindicted Co. 41, 22, and 43, the Defendant, who agreed to the resolution for the capital increase, opposed to the capital increase due to Nonindicted Co. 41, 22, and 43’s management of Nonindicted Co. 1’s stock price. As such, there was a dispute that delayed the publication of the decision for

④ The Defendant paid a number of money to Nonindicted 3 on several occasions through employees Nonindicted 22 and Nonindicted 44.

2) Determination of the immediate deliberation

Comprehensively taking account of the evidence duly adopted and examined by the court below and the court below and the following circumstances acknowledged by the argument in this case, the defendant, around April 2013, provided Nonindicted 3 with about about 1860,00 share price of Nonindicted Company 1’s work and managed the share price of Nonindicted Company 1’s work around 2013, and can fully recognize the fact that the defendant conspiredd to commit the manipulation of market price in 2013 as stated in paragraph (3) of the criminal facts in the judgment below. The judgment of the court below to the same purport is just, and there is no error of law by mistake of facts or

① From October 31, 2012 to June 28, 2013, the Defendant had Nonindicted Company 2, Nonindicted Party 43, Nonindicted Party 3 (hereinafter referred to as “Nonindicted Party 1,860,080”), and Nonindicted Party 41 exercise the unit of Nonindicted Company 1 with a total of KRW 17,702,368 (hereinafter referred to as “Nonindicted Party 1”) and raised and used a total of KRW 9.6 billion (Evidence 1,27, August 8, 2013).

② On June 28, 2013, Nonindicted 45, who used a warranty at the 1,377,687 p.m., stated that “The Defendant, around April 2013, would give 50% of the profits if he/she would take charge of the shares acquired by exercising a warranty, and that the shares should be left to him/her as in the same way as other warranty event holders for share price management.” Moreover, he/she refused to exercise a warranty, and asked the Defendant to hold shares after exercising the warranty (Evidence 1, 1734, 1735 pages of evidence record). The Defendant held approximately 1,77 million shares issued in a warranty event (as of December 31, 2012, the number of shares issued as of December 31, 2012 was about 67,700,000 shares, and Nonindicted 738,000 shares owned by the Defendant’s members, etc. were sold to Nonindicted 1, 2013.

③ However, inasmuch as shareholders could not prevent the disposal of shares in order to avoid losses when the price of Nonindicted Company 1’s stock drop, it was necessary for the Defendant to manage the share price to maintain a certain level, and for this purpose, the Defendant provided Nonindicted 3 with a set of 1,860,080 shares to induce Nonindicted 3 to make a price manipulation in order to gain profits from the market price, thereby inducing Nonindicted 3 to use Nonindicted 3’s market price manipulation and to receive money from Nonindicted 22 and Nonindicted 44 on several occasions. The Defendant’s act is deemed to have been carried out by Nonindicted 3’s market price manipulation, and thus constitutes the intention of joint processing with regard to market price manipulation.

This part of the defendant's assertion is without merit.

C. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

1) The judgment of the court below

In full view of the following circumstances, the lower court determined that, even if the Defendant received KRW 4 billion from the victim, the Defendant did not have the ability to repay funds without selling Nonindicted Company 1 in light of the financial situation of Nonindicted Company 2, and that, in light of the situation of Nonindicted Company 1 at that time, it could sufficiently be recognized that, even if she knew or could have known that the sale of Nonindicted Company 1 was objectively impossible within one year, it would be objectively impossible within 1 year, without notifying the victim of such fact, by receiving KRW 4 billion from the victim.

① The maturity date for existing investors of Nonindicted Company 2 arrives, etc.

The Defendant, around January 201, invested KRW 5 billion in the name of Nonindicted Company 1 B in the name of Nonindicted Company 2 after investing 18 investors, including the victim, and invested KRW 5 billion in the name of Nonindicted Company 2. The initial repayment date for the said investors was around January 2012. However, the Defendant preferentially repaid the money (including principal KRW 960 million, including interest, and KRW 960 million) to some investors who wish to receive a return on the agreed repayment date, and extended the repayment date for the remaining investors who wish to receive a return of the money to KRW 4.1 billion to KRW 4.1 billion to KRW 4.1 billion to KRW 6 months. The Defendant was treated as having received the repayment date for the remaining investors around July 8, 2012, at the same time as the repayment date for the investment amount of KRW 350 million in Nonindicted Company 27,500,000,000 among the investors, together with Nonindicted Company 27 and part of the remainder of the investment funds and KRW 9829.

Around July 2011, the Defendant acquired Nonindicted Company 1, and received KRW 5 billion from Nonindicted 43, KRW 29, KRW 1 billion from Nonindicted 29, and KRW 800 million from Nonindicted 27. On or around July 2012, the due date for the said investment has arrived. The Defendant extended the due date for the repayment by means of re-investment of KRW 1 billion from Nonindicted 29 and KRW 800 million from Nonindicted 27. However, at the time, the Defendant had to pay KRW 5 billion from Nonindicted 43 at the time (Evidence 8: 147 through 150).

The Defendant agreed to substitute KRW 3 billion out of KRW 3,031,686,00, which was paid from Nonindicted 46 to January 25, 2012 from October 14, 2010 to January 25, 2012, Nonindicted 46 purchased 15% of the shares of Nonindicted Company 1 held by Nonindicted Company 2 in the name of Nonindicted 47 and Nonindicted 48 on July 16, 2012 (Evidence 8, 445, 449).

㉣ 이와 같이 피고인은 공소외 2 회사의 기존 투자자들의 투자금에 대한 상환기일을 연장하고, 재투자받는 방식으로 상환하거나 공소외 1 회사 주식으로 변제하는 등 공소외 1 회사에 투자한 자금이 회수되지 않음에 따라 자금이 충분하지 않은 상황이었고, 피고인 스스로도 인정하는 바와 같이 공소외 1 회사가 매각되지 않는 이상 피해자의 자금을 상환하기 위해서는 새로운 투자를 받아야 하는 상황이었다.

② Possibility of selling 20 billion won of Nonindicted Company 1

The ADD Co. 1 was in a situation where the operating fund of the Company was insufficient, except for approximately KRW 6,750,000,000 from April 2012 to June 2012, 2012, with the total amount of the unit exercise price paid between the DD Co. 1 and Nonindicted Co. 1. Of the unit exercise price paid, KRW 2 billion was invested in Nonindicted Co. 28, and approximately KRW 3,90,000,000,000 was used in repaying BW owned by Nonindicted Co. 2 and KRW 1,000,000,000.

In the event that Defendant 5 resigned from the position of director of Nonindicted Company 1 on August 2, 2012 and the business related to Nonindicted Company 28 was not performed properly, there was almost no sales due to a new project being promoted at the time (Evidence 74, 76 submitted by the Defendant).

B. The first time, the first time, Non-Indicted. 29 was proposed from the Defendant for the merger of Non-Indicted. 29 and Non-Indicted. 1, and it does not seem to have been actively promoted the merger with Non-Indicted. 1 (In conclusion, the first time, △ Telecom came to be listed in its own). Moreover, even with the companies for which the Defendant negotiated or reviewed the sale of Non-Indicted. 1, it did not reach an agreement on the sales price.

㉣ 공소외 29, 공소외 27 등 투자자들이 공소외 1 회사가 200억 원 이상에 매각될 수 있겠다고 판단하였다는 것도 그 당시 객관적인 자료들을 검토하고 나서 내린 것이 아니라 피고인이 한 이야기를 그대로 믿은 결과에 불과한 것으로 보인다.

In light of the above financial condition of Nonindicted Co. 1, it seems practically difficult to sell Nonindicted Co. 1 to the price above 20 billion won presented by the Defendant, even if considering that Nonindicted Co. 1 was a press organization.

③ Whether the victim was notified of the financial status of Nonindicted Company 1

Non-Indicted 29, Non-Indicted 27, and Non-Indicted 12 who invested money at a time similar to that of the victim of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime.

Although Nonindicted 45, who was the victim of the Republic of Korea, was a director of Nonindicted Company 1 and was close to Nonindicted 43 who was an existing investor, Nonindicted 43 had the position to receive reimbursement of KRW 5 billion invested in Nonindicted Company 2 at that time, Nonindicted 45 stated that he could not speak about Nonindicted Company 2’s obligations, etc. when he asked the Defendant before he pays KRW 4 billion. The time when Nonindicted 45 worked for Nonindicted Company 1 as a director of Nonindicted Company 1 after the victim paid KRW 4 billion. Thus, unless the Defendant was notified, Nonindicted 43 could not know the financial status of Nonindicted Company 1, the possibility of actual sale, and the expected amount of sale.

2) Determination of the immediate deliberation

The intent of deception, which is a subjective constituent element of fraud, shall be determined by comprehensively taking into account the objective circumstances, such as the Defendant’s financial history, environment, details of the crime, and the process of performing the transaction before and after the crime, insofar as the Defendant does not make a confession. The intent of the crime is sufficient not to have any conclusive intention but to have dolusent intent (see Supreme Court Decision 2007Do10416, Feb. 28, 2008). It is sufficient to say that deception as an act of fraud does not necessarily require false indication as to the important part of a juristic act, and that it is the basis of judgment for making the other party take an act of disposal desired for the offender by omitting the other party’s mistake. Therefore, in a case of borrowing money, if it is related that the other party would not have been lent if the real purpose was notified, it shall be deemed that the deception as an act of fraud was committed (see, e.g., Supreme Court Decision 95Do707, Sept. 15, 1995).

In full view of the evidence duly adopted and examined by the court below and the court below and the following circumstances recognized by the argument of this case, as stated in paragraph (4) of the crime of this case in the judgment below, the defendant can sufficiently recognize the fact that the defendant deceivings the victim about the ability to repay and the use of borrowed money as stated in paragraph (4) of the crime of this case, and the defendant, who was aware of such circumstances, has the criminal intent of defraudation. The judgment of the court below to the same purport is just, and there is no violation of law of misunderstanding of facts or misunderstanding

① Around February 2011, when the Defendant became aware of the fact that Nonindicted Company 1’s share price falls rapidly and that there was almost little inside funds to operate the Company, etc., the Defendant made an additional investment in Nonindicted Company 1 and became subject to acquisition of Nonindicted Company 1 by means of fear that it could not recover the investment money from Nonindicted Company 1. However, around July 2012, there was no difference in the financial position or profit-making situation of Nonindicted Company 1 compared to that of July 2011. However, Defendant 2, through the manipulation of market manipulation with Defendant 2, etc., was attracting the price for the set event by taking advantage of the difference in the stock price inflation. In light of the above financial position of Nonindicted Company 1, which was known to the Defendant, the Defendant sold at least KRW 20 billion to Nonindicted Company 1 until July 2013, and the Defendant did not have the ability to pay the principal and interest of Nonindicted Company 2, including the loan amount of KRW 4 billion to the victim.

② The Defendant explained the need for funds to acquire management rights of Nonindicted Company 1, and subsequently borrowed KRW 4 billion from the victim, but thereafter, the funds actually used for the purchase of shares are merely KRW 1.1 billion, and used KRW 1.6 billion for the repayment of obligations to Nonindicted 43, etc. In the event that the Defendant was notified of the real purpose of use, it is determined that the Defendant did not lend KRW 4 billion or lent only KRW 1.1 billion used for the purchase of shares (Evidence 9No. 629). Therefore, the Defendant could be deemed as deceiving the victim as well as the repayment obligor.

This part of the defendant's assertion is without merit.

3. Judgment on the mistake of facts and misapprehension of legal principles by Defendant 2

A. Market price manipulation part in 2009

1) Invitation to commit the manipulation of market price

A) The judgment of the court below

In full view of the following circumstances, the lower court determined that it was reasonable to view that the Defendant conspiredd to manipulate the market price as stated in paragraph (1) of the crime of the lower judgment by informing Nonindicted 7, etc. of the fact that capital increase was made prior to the public disclosure of capital increase for the purpose of success of Nonindicted 1’s capital increase

① Around May 2009, the Defendant consulted with Nonindicted 50, a major shareholder of Nonindicted Company 49, in the process of acquiring the shares and the right of management of Nonindicted Company 51, a major shareholder of Nonindicted Company 1. At the time, Nonindicted 50, a major shareholder, agreed to pay the amount of funds that he received from Nonindicted Company 1 as collateral and the amount that Nonindicted Company 49 received from Nonindicted Company 1 as collateral and the amount that he received from Nonindicted Company 1, and sought to acquire the shares and the right of management of Nonindicted Company 1 in the manner of so-called capital M&A (Evidence No. 4, 3624

② Since the investment in Nonindicted Co. 1’s investment in Nonindicted Co. 49 was a condition for Nonindicted Co. 50 to take responsibility for the funds necessary for the capital increase for Nonindicted Co. 1’s capital increase and to make an investment as the payment for the said investment, Nonindicted Co. 50 was required to successful the capital increase for Nonindicted Co. 1’s capital increase in order to raise the acquisition price (or around May 2009, Nonindicted Co. 1’s capital increase in KRW 700 to KRW 800, and Nonindicted Co. 500, supra, it was difficult for Nonindicted Co. 50 to take a loan of KRW 17.5 billion, since it was difficult for Nonindicted Co. 1’s capital increase in KRW 17.5 billion, the Defendant was also able to take profits, such as acquiring the price for the capital increase and the capital increase in the capital increase in Nonindicted Co. 1’s capital increase.

③ On May 25, 2009, Nonindicted Co. 1 published the decision to issue a public offering worth KRW 15 billion. However, on several occasions thereafter, it was finally published the decision to issue a public offering on August 24, 2009. In order to attract general investors who want to participate in such public offering, there was a need to have a rise in stock price in order to attract them.

④ The Defendant informed Nonindicted Company 1 and Nonindicted Company 49’s M&A and capital increase increase plan to Nonindicted Company 7, 52, etc. prior to the first public announcement on May 25, 2009, and around that time, Nonindicted 7 notified Defendant 3 of the said fact, and accordingly, Defendant 3, Nonindicted 7, and Nonindicted 52, etc. suspended the purchase of Nonindicted Company 1’s stocks prior to the public announcement on May 25, 2009 through the name account, etc. and suspended the purchase due to the delay of capital increase.

⑤ On August 24, 2009, the Defendant solicited Nonindicted 7 and Nonindicted 52, etc. to purchase the capital increase lawsuit prior to the public announcement of the decision on capital increase consideration, and around that time, Nonindicted 7 notified Defendant 3 of the above information. Accordingly, Defendant 3, Nonindicted 7, and Nonindicted 52, etc. used the name account, borrowed account, and the account delegated from the land manager to the land manager, etc. to submit an intensive market price manipulation order or recommend the land manager to purchase the shares. Furthermore, Defendant 3 sold profits by selling approximately two times the price higher than the public announcement price.

(6) Meanwhile, in order to prevent the increase in the number of shares to be distributed through the offering of new shares as collateral, Nonindicted 50 and the Defendant participated in the offering of new shares as collateral. After the success of the offering of new shares, it was necessary to maintain the share price at a certain level or prevent the decline in the share price due to the sale of new shares. In addition, the Defendant borrowed funds from Nonindicted 54 to Nonindicted 54 in order to acquire the shares of Nonindicted Company 1 from Nonindicted 53, along with Nonindicted 7, in order to pay the price, the acquired shares from Nonindicted 53 to pay the price. On October 19, 2009, the Defendant requested Nonindicted 55 to sell shares at the same time as the profit-making agreement and at the same time offered 70,000 shares of Nonindicted Company 1 as collateral, and requested Nonindicted 1 to purchase the shares of Nonindicted Company 1, 77, etc.

B) Determination of the immediate deliberation

Comprehensively taking account of the evidence duly admitted and examined by the court below and the arguments in this case as well as the following circumstances, the defendant, from May 2009 to the public announcement of the subscription to new shares for the purpose of success of the non-indicted 1's offering to new shares, notified the non-indicted 7, etc. prior to the public announcement of the subscription to new shares for the purpose of success of the non-indicted 1's offering to new shares, and urged the non-indicted 1 to collect the shares of the non-indicted 1's subscription as stated in paragraph (1) of the criminal facts in the judgment below

① On November 11, 2014, Nonindicted 7 stated at the prosecution that “Nonindicted Party 1’s share price was requested from the Defendant to support for the success of capital increase.” (Evidence No. 1273, Nov. 13, 2014) Nonindicted Party 7 stated that Nonindicted Party 2 made a statement to the effect that Nonindicted Party 5’s offering of new shares for the purpose of offering new shares is able to increase the subscription rate for the purpose of offering new shares to a certain extent. Nonindicted Party 2 made a statement to the effect that Nonindicted Party 5’s offering of new shares for the purpose of offering new shares for the purpose of offering new shares for the purpose of offering new shares for the purpose of 209 KRW 10,50 (Evidence No. 1273, Nov. 13, 2014). Nonindicted Party 2 made a statement to the effect that Nonindicted Party 5’s offering of new shares for the purpose of offering new shares for the purpose of offering new shares for the purpose of 200,515.

② Around May 25, 2009 and August 24, 2009, the Defendant informed Nonindicted 7, Nonindicted 52, etc. of a plan for capital increase to new shares prior to the public announcement of capital increase. Defendant 3, Nonindicted 7, and Nonindicted 52, etc. submitted an order for market price manipulation during the period indicated in paragraph (1) of the criminal facts stated in the lower judgment to artificially increase the share price. The Defendant provided opportunities for the market price manipulation force, such as Nonindicted 7, etc. to obtain profits through market price manipulation. The Defendant is determined to have urged Nonindicted 7, etc. to inform Nonindicted 7, etc. of a plan for capital increase to ensure the successful progress of capital increase by using the opportunity to increase the share price. The Defendant’s act was carried out by Nonindicted 7, etc. with his intention to use the market price manipulation and thus constitutes the intention to jointly process the market price manipulation.

This part of the defendant's assertion is without merit.

(ii) an account used in the manipulation of market price;

The Defendant asserts that, among the 82 securities accounts in the name of Nonindicted 8, etc. in the name of Nonindicted 9, Nonindicted 56, Nonindicted 57, Nonindicted 58, Nonindicted 59, Nonindicted 60, Nonindicted 61, Nonindicted 62, Nonindicted 63, Nonindicted 64, Nonindicted 65, Nonindicted 66, Nonindicted 67, Nonindicted 68, Nonindicted 69, Nonindicted 71, Nonindicted 72, Nonindicted 73, Nonindicted 74, Nonindicted 75, Nonindicted 76, Nonindicted 77, Nonindicted 78, Nonindicted 78, Nonindicted 79, Nonindicted 81, and Nonindicted 82 in the judgment of the court below, the securities accounts in the name of Nonindicted 9, Nonindicted 57, Nonindicted 58, Nonindicted 59, Nonindicted 60, Nonindicted 62, Nonindicted 64, Nonindicted 65, Nonindicted 67, Nonindicted 68, Nonindicted 69, and Nonindicted 82 in the name of the Defendant

Comprehensively taking account of the evidence duly adopted and examined by the lower court and the lower court and the following circumstances acknowledged by the argument in the instant case, the fact that this part of the securities account was used for the manipulation of market price in 2009 by Defendant 3, Nonindicted 7, and Nonindicted 52, etc. can be fully recognized.

① Nonindicted 9, Nonindicted 83, Nonindicted 56, Nonindicted 54, Nonindicted 57, Nonindicted 58, Nonindicted 59, Nonindicted 65, Nonindicted 60, Nonindicted 61, Nonindicted 62, Nonindicted 64, Nonindicted 65, Nonindicted 66, Nonindicted 87, Nonindicted 88, Nonindicted 67, Nonindicted 89, Nonindicted 68, Nonindicted 69, Nonindicted 70, Nonindicted 72, Nonindicted 73, Nonindicted 74, Nonindicted 74, Nonindicted 75, Nonindicted 76, Nonindicted 78, Nonindicted 79, Nonindicted 80, Nonindicted 81, Nonindicted 92, Nonindicted 81, Nonindicted 81, and Nonindicted 82 were submitted at the time of the submission of an order for the purchase and order, and the order for the price manipulation in the process of 209.

② Of them, the securities accounts in the name of Nonindicted 83, Nonindicted 84, Nonindicted 85, Nonindicted 86, Nonindicted 87, Nonindicted 88, Nonindicted 89, Nonindicted 90, Nonindicted 91, and Nonindicted 92 were confirmed to have been used by Defendant 3 in the course of committing the manipulation of market price in 2009 (Evidence 2, Nonindicted 2365 or 2669).

③ Securities accounts in the name of Nonindicted 9, Nonindicted 57, Nonindicted 59, Nonindicted 60, Nonindicted 61, Nonindicted 62, Nonindicted 63, Nonindicted 64, Nonindicted 65, Nonindicted 66, Nonindicted 67, Nonindicted 68, Nonindicted 69, Nonindicted 70, Nonindicted 71, Nonindicted 72, Nonindicted 73, Nonindicted 75, Nonindicted 76, Nonindicted 77, Nonindicted 78, Nonindicted 79, Nonindicted 80, Nonindicted 81, and Nonindicted 82 are recognized in terms of connection between the securities account and the securities account that the Defendant was used in committing the manipulation in 209 or between each of the said securities accounts (Evidence 131 through 145).

④ The connection between Nonindicted 56, Nonindicted 58, and Nonindicted 74’s securities account is recognized in terms of the identity of Nonindicted 93’s securities account and account manager, opening point, and orderIP, which recognized that the Defendant was used in committing a crime of manipulation in 2009 (Evidence No. 162, 163). The transaction of Nonindicted Company 1’s stocks through the securities account in the name of Nonindicted 56 and Nonindicted 74 was made through the same order IP as Nonindicted 52, and Nonindicted 52 actively recommended Nonindicted 56 and Nonindicted 74 to purchase the shares of Nonindicted 56 and Nonindicted 74, and it is argued that Nonindicted 56 and Nonindicted 74 did not use the securities account in the name of Nonindicted 56, Nonindicted 74, and that Nonindicted 56 and Nonindicted 74 did not participate in the market manipulation (Evidence No. 5414 through 4433, the evidence record No. 162, 163). However, considering these circumstances, Nonindicted 52652’s.

This part of the defendant's assertion is without merit.

3) Possibility of a fluctuation in market prices due to market manipulation;

"Sale or purchase and sale of securities or exchange-traded derivatives with a misleading or misleading market price" under Article 176 subparagraph 1 of the former Financial Investment Services and Capital Markets Act refers to trading or purchase and sale in which the market price and trading volume to be formed in a free competition market are likely to be artificially changed due to other factors not attributable to the market price. It does not require a change in the market price, and where a series of acts have occurred, it is sufficient that the overall act may cause a change in the market price due to the act. Whether each of the above conditions is satisfied can be determined by comprehensively taking into account indirect facts, such as the nature of the securities and the total number of outstanding securities, the price and trading volume trends, the economic rationality and fairness of the transaction, whether the transaction was conducted before and after, or after, the trading, the degree of contribution to the market, and the motive and manner of the transaction, including continuous management of closing price, etc. (see, e.g., Supreme Court Decision 2007Do7471, Nov. 29, 2007).

In full view of the evidence duly adopted and examined by the court below and the court below and the total number of shares issued by non-indicted 1 as well as the market price and trading volume at the time of the market manipulation crime in 2009, the economic rationality and fairness of the transaction before and after the market manipulation crime, the economic rationality and fairness of the transaction, the highest purchase order, the order for market price manipulation stated in attached Table I related to the market manipulation crime in 2009 is a trade where the market price and trading volume to be formed in the free competition market are likely to artificially change according to normal demand and supply, and the order for market price manipulation stated in attached Form I related to the market manipulation crime in 209 is a trade where the market price and trading volume to be formed in the free competition market are likely to be changed artificially.

This part of the defendant's assertion is without merit.

B. Market price manipulation part in 2012

1) Invitation to commit the manipulation of market price

Comprehensively taking account of the evidence duly adopted and examined by the lower court and the circumstances acknowledged by the instant pleadings, Defendant 4, as seen in Article 4-A(a), may sufficiently recognize the fact that Defendant 4 conspiredd with Defendant 3 and Defendant 4 through Defendant 3 to commit a crime of manipulation in 2012. Therefore, even if Defendant 4 did not directly conspired with Defendant 4 for a crime of manipulation in 2012, he/she is liable to commit a crime as a co-principal against the entire conduct of other conspiracys including Defendant 4.

In the case of co-principals, when one of the solicitors leaves from the public contest relationship before the others reach the action, he/she shall not be held liable as a co-principal with respect to the subsequent acts of the other competitors. However, the deviation from the public contest relationship is necessary to resolve the functional control of the conduct that the recruiter takes charge of the public contest. As such, when the recruiter participates in the public contest and has an impact on the execution of other competitors, he/she shall not be deemed to have departed from the public contest relationship unless he/she has removed the influence on the execution, such as actively endeavoring to block the crime (see, e.g., Supreme Court Decision 2008Do1274, Apr. 10, 2008). In light of the Defendant’s visible behavior and attitude since May 2, 2012, the criminal defendant cannot be deemed to have retired from the public contest relationship.

The judgment of the court below is just, and there is no error of law by misunderstanding of facts or misunderstanding of legal principles, and this part of the defendant's assertion is

(ii) an account used in the manipulation of market price;

The Defendant asserts that, among the 30 securities accounts in the name of Nonindicted 10, etc. in the name of Nonindicted 11, Nonindicted 94, Nonindicted 95, Nonindicted 96, Nonindicted 97, Nonindicted 98, Nonindicted 17, Nonindicted 99, and Nonindicted 100, the securities accounts in the name of Nonindicted 11, Nonindicted 94, Nonindicted 96, Nonindicted 97, Nonindicted 98, and Nonindicted 100 as indicated in [Attachment II] of the facts constituting the crime in the judgment of the court below, the Defendant and his accomplice

A) Securities account in the name of Nonindicted 11, Nonindicted 94, Nonindicted 95, Nonindicted 96, Nonindicted 97, Nonindicted 98, and Nonindicted 17 (U.S.C.)

Comprehensively taking account of the evidence duly adopted and examined by the lower court and the lower court and the following circumstances acknowledged by the instant pleadings, the fact that this part of the securities account was used in the manipulation of market prices in 2012 by the Defendants, Nonindicted 3, and Nonindicted 21, etc. can be fully recognized.

① The securities account in the name of Nonindicted 11, Nonindicted 94, Nonindicted 95, Nonindicted 96, Nonindicted 97, Nonindicted 98, and Nonindicted 17 (U.S.) was used in submitting a market price manipulation order, such as the highest and ordinary trading orders, high-priced purchase orders, quantity reduction orders, brush purchase orders, and scop and retail orders, in the course of committing a market price manipulation in 2012. In particular, the securities account in the name of Nonindicted 11, Nonindicted 95, Nonindicted 96, Nonindicted 97, and Nonindicted 98 was used in the most and viacop order.

② The securities account in the name of Nonindicted 11 is the same as that of Nonindicted 102, Nonindicted 10, Nonindicted 103, Nonindicted 104, and Nonindicted 106, and the securities account in the name of Nonindicted 21 and Nonindicted 101, used by Nonindicted 11 in the 2012 market manipulation (Evidence 1, Title 261, 262 of the evidence record), and the securities account in the name of Nonindicted 94, Nonindicted 95, and Nonindicted 96, used in the market manipulation crime in 2012, in connection with the securities account in the name of Nonindicted 102, Nonindicted 10, Nonindicted 103, Nonindicted 104, Nonindicted 105, and Nonindicted 106 (Evidence 1, Title 263 of the evidence record).

③ The securities account in the name of Nonindicted 11 and Nonindicted 96 stated by Nonindicted 3 at the prosecution that the account would be used for the manipulation of market price in 2012, and Nonindicted 17’s future deposit securities account in the name of Nonindicted 4 did not dispute that the said account was used by Defendant 4, and that the loss incurred from the said account was not deducted from the profits, is also asserted as the grounds for appeal.

This part of the defendant's assertion is without merit.

B) Securities accounts in the name of Nonindicted 99 and Nonindicted 100

In the facts charged of this case, the securities account in the name of Nonindicted 99 is indicated as indicated in the attached Table II-2, No. 1827, 1829, and 2211 as follows: three times in the high-priced purchase order and one time in the quantity reduction order, as described in the attached Table II-2, No. 1829, and No. 467. The securities account in the name of Nonindicted 100 is indicated as follows: one time in the high-priced purchase order, as described in the attached Table II-2, No. 1843, No. 1318, 1320, and 1321.

In light of the circumstances examined in Section 4-b.3 below, the securities account in the name of Nonindicted 99 and Nonindicted 100, unlike other securities accounts, is considerably less than the number of times used in the market manipulation order, and the evidence submitted by the prosecutor alone cannot be deemed as having been used in the market manipulation crime in 2012 by Defendant 4, and there is no other evidence to acknowledge this otherwise.

Of the facts charged as to the conduct of manipulation of market price in 2012, the portion of the attached Table II-2 year 1827, 1829, 1843, 2211, No. 467, 1318, 1320, and 1321 among the facts charged as to the conduct of manipulation of market price in 2012 shall be acquitted as it constitutes a case where there is no proof of a crime. Nevertheless, there is an error of misunderstanding of facts and misunderstanding of legal principles that the court below found the defendant guilty of the prosecution room

This part of the defendant's argument is with merit state 2).

3) Possibility of a fluctuation in market prices due to market manipulation;

In full view of the evidence duly adopted and examined by the court below and the trial of the court below and the total number of shares issued by non-indicted 1 as well as the market price and trading volume at the time of the market price manipulation crime in 2012, the economic rationality and fairness of the transaction before and after the market price manipulation crime, the economic rationality and fairness of the transaction, the highest purchase order, the quantity reduction order, the purchase order, the market price reduction order, the number of market price order, and the number of times of closing and selling orders, etc., the order of market price manipulation stated in the attached Table II (excluding Section II-2 year 1827, 1829, 1843, 1843, 2211, II-3 year 467, 1318, 1320, 1321) constitutes a market price manipulation or a misunderstanding prescribed in subparagraph 17 of Article 16 of the Capital Markets Act, which is likely to cause an artificial change in the market price in the free competition market.

This part of the defendant's assertion is without merit.

4) The unjust enrichment gained from the manipulation of market price manipulation

A) Shares of stock price increase due to hoscrymist articles

The term “profit accrued from a violation” under the proviso of Article 443(1) and (2) of the Capital Markets Act means the gross income generated from a transaction related to a violation, which is recognized as having causation with the risk of the violation. In ordinary cases, the difference may be calculated by calculating the gross income generated from a transaction related to the violation after deducting the total cost for such transaction. However, in cases where there are circumstances to deem it unreasonable to calculate the value of the profit accrued from a specific violation, such as a share price increase caused by a third party unrelated to a normal price change in the stock market or a price increase caused by a change caused by a third party irrelevant to the violator, it should be determined by the aforementioned method: (a) the legislative purport of Article 443 of the said Act and the principle of liability, which are the major principle of criminal law, to eradicate fraudulent unfair trading; (b) the causal relationship should be determined by considering the motive, mode, and period of the violation; (c) whether a third party engaged in the violation; and (d) the burden of proof should be determined by a prosecutor as the sole and comprehensive basis of liability for such violation.

In addition, the term "profit derived from a violation" refers to the profit arising from a transaction related to the violation, not necessarily refers to the profit that has a direct causal relationship with the violation, but it constitutes the profit gained from a transaction involving the violation (see Supreme Court Decision 2004Do1628, Sept. 3, 2004, etc.).

(1) The judgment of the court below

The lower court: (a) determined that Nonindicted Co. 1’s investment in Nonindicted Co. 28 was likely to have a significant impact on Nonindicted Co. 1’s investment in Nonindicted Co. 1 on Apr. 30, 2012, when Nonindicted Co. 1’s investment in △△△ was not avoided from the issue of investment attention; (b) Nonindicted Co. 1 started to have been reported from Jan. 2012, 201; and (c) Nonindicted Co. 1’s investment in △△○○ was likely to have a significant impact on the share price manipulation; and (d) Nonindicted Co. 1’s investment in △△△△○ was likely to have a significant impact on Nonindicted Co. 1’s investment in △△△△△△, which was the time when Nonindicted Co. 1’s investment in ○○○○○ was made; (e) Nonindicted Co. 1’s investment in Nonindicted Co. 2 and Nonindicted Co. 1’s investment in Nonindicted Co. 27, 2012.

(2) Judgment of the court below

In light of the circumstances duly determined by the lower court, a thorough examination of the evidence duly adopted and examined by the lower court compared with the records of the instant case: (a) Defendant 5 stated in the prosecutor’s office that “The share price of Nonindicted Company 1 has risen between June 11, 2012 and the end of June 2012, there was no material or change in circumstances that make it possible for the share price to enter into the company’s internal or surrounding circumstances at the time of the increase of the share price; (b) the share price at the time of the company’s internal or surrounding circumstances (Evidence 3: 2930 pages of evidence records); (c) it cannot be deemed that the share price has risen due to the Articles asserted by the Defendant; and (d) it cannot be deemed that the said articles did not reflect it in the process of calculating unjust enrichment gained from the manipulation of 2012. The lower court’s determination is justifiable, and there was no error of misunderstanding of facts or misunderstanding of legal principles (in addition, Defendant 4’s recommendation that the share price increase in 20 years was ordinarily anticipated.

This part of the defendant's assertion is without merit.

B) On April 30, 2012, calculating profits on the basis of closing prices

(1) The judgment of the court below

The lower court determined that it is reasonable to calculate the amount of unjust enrichment by applying the value of the set exercise, not the paper on the day immediately before the beginning date of the market price manipulation, to the acquisition value applicable when calculating the profit accrued from the market price manipulation in 2012 in relation to the set that was exercised before May 2, 2012, which was the date of the beginning date of the market price manipulation, on the ground that the purpose of exercising the set appears to have been to have been to have sold the stocks issued by the set and to have been obtained the difference equivalent to the difference when the share price has increased from the beginning due to the market price manipulation.

(2) Judgment of the court below

In principle, the profit accrued from market price manipulation shall be calculated by the method of calculating the difference from the gross income minus the total expenses incurred in the transaction. If the profit accrued from the market price manipulation is calculated by calculating the difference, the expense is the price at which the profit accrued. In full view of the evidence duly adopted and examined by Nonindicted Company 1 on April 30, 2012 as to whether the share price increase was reflected in the expectation that the profit accrued from the market price manipulation is to be released from the investment scheme, the court below and the court below, and the court below. As the Nonindicted Company 1 was not released from the investment scheme, the share price falls from May 2, 2012, and the share price falls from May 9, 2012, notwithstanding the market price manipulation such as Nonindicted Company 3, etc., even if the share price increase with the expectation for the redemption of the investment scheme until April 30, 2012, it cannot be deemed that the above increase was unreasonable since the Defendants’ profit was not realized immediately after the lapse of the share price.

Next, as to whether the difference between the price of Nonindicted Company 1 and the price formed at that time should be excluded from the profits acknowledged as causation, the court below and the court below duly adopted and examined the evidence, and the following circumstances acknowledged by the argument of this case, namely, ① the Defendants, after acquiring the shares of Nonindicted Company 1 from the beginning, planned to gain profits equivalent to the difference between the price of disposal and the exercise price through price management, such as price manipulation, and ② the difference between the price of the Nonindicted Company 1 and the price of the company was used at that time, and since May 2, 2012, the difference was included in the difference between the price of the Nonindicted Company 1 and the price of the company 4 until the price increase by June 11, 2012. In light of the above, the lower court’s determination that there was no possibility that the difference between the share price and the price of the company 1’s profits would have been generated as a matter of course, and thus, it was difficult to attract the difference between the price of the company 1’s profits at that time.

This part of the defendant's assertion is without merit.

C) The portion of 354,670,765 won for unjust enrichment with respect to the set used by Nonindicted 12

The lower court determined that, since Nonindicted 12 agreed to divide 50% of the profits accrued from the Defendant’s event, it included Nonindicted 12’s unrealized profits of KRW 171,890,765, as well as KRW 182,780,00, totaling KRW 354,670,765, which was kept by Defendant 5, in total, 382,780, and KRW 385,000, which was kept by Defendant 5, inasmuch as Nonindicted 12 agreed to divide the profits accrued from the Defendant’s event, it was included in the unjust enrichment acquired from the manipulation crime in 2012.

Examining the evidence duly adopted and examined by the court below along with the circumstances properly determined by the court below in comparison with the records of this case, the judgment of the court below is just and acceptable, and there is no error of misunderstanding of facts or misunderstanding of legal principles.

This part of the defendant's assertion is without merit.

D) The portion of KRW 1,761,90,136 relating to unjust enrichment with respect to the set used by Nonindicted 13

The lower court determined that: (a) Nonindicted 13 was included in the unjust enrichment acquired from Nonindicted 3’s trading of the stocks of Nonindicted Company 1 in the year 2012 on the ground that it was reasonable to deem that the profits earned from Nonindicted 13’s trading account were the profits earned by Nonindicted 3, on the ground that Nonindicted 3 et al. was aware of the fact that Nonindicted 3 et al. were able to manipulate the market price for the stocks of Nonindicted Company 1; and (b) Nonindicted 1,761,90,136 won

Examining the evidence duly adopted and examined by the lower court in comparison with the record of the instant case, it is determined that Nonindicted 13 constitutes a co-principal or an assistant offender of the manipulation of market price in 2012. As such, the profits earned by Nonindicted 13 also constitute the gains obtained by all the accomplices and includes the unjust enrichment obtained from the manipulation of market price in 2012. In conclusion, the lower court’s determination is justifiable, and there is no error of misunderstanding of facts or misunderstanding of legal principles.

This part of the defendant's assertion is without merit.

D) The portion of KRW 126,959,924 relating to unjust enrichment with respect to the set used by Nonindicted 14

The lower court determined that: (a) the Defendant agreed to divide the profits from the unit price into 5:5 with Nonindicted 14; (b) even if Nonindicted 14 did not distribute profits from the unit price, unlike the initial agreement, 50% of the profits accrued from the unit price event should be deemed to be the profits attributed to the Defendant; and (c) accordingly, the lower court determined that KRW 126,959,924, which was 50% of the 50% of the 253,919,848 won, is included in the unjust enrichment that was derived from the market

Examining the evidence duly admitted and examined by the court below in comparison with the records of this case, as long as benefits of KRW 253,919,848 have been realized by the sale of the shares of non-indicted 1, the defendant and non-indicted 14, the monetary claim of KRW 126,959,924 amounting to 50% of the profits pursuant to the agreement was created among the defendant and non-indicted 14, and even if non-indicted 14 did not perform the monetary obligation to the defendant after the fact or rescinded the agreement unilaterally without any authority, this does not cause any trouble in the establishment of the crime as it was after the crime had already been committed due to the realization of profits. The judgment of the court below to the same purport is just, and there is no error of misunderstanding of facts

This part of the defendant's assertion is without merit.

E) Of the profits acquired by Defendant 5 in the name of Nonindicted 15, the part exceeding KRW 269,592,000 among the profits

As examined below in Paragraph 5, Defendant 5’s profits derived from the manipulation of market price in 2012 are KRW 609,159,515, which is less than KRW 1,327,316,518, which the lower court acknowledged.

In this part of the facts charged, the portion exceeding 609,159,515 won in excess of 609,159,515 won should be pronounced not guilty on the ground that there is no proof of a crime. Nevertheless, the court below erred by misunderstanding of facts and misunderstanding of legal principles in finding guilty for the part that the court below obtained more than 609,159,515 won and 1,327,31

This part of the defendant's assertion is justified within the above scope of recognition.

F) The portion of 622,837,482 won relating to unjust enrichment with respect to the set used by Nonindicted 16

The lower court determined that: (a) Defendant 3 agreed with Nonindicted 16 to divide profits derived from the unit development into KRW 3:7; and (b) even if Nonindicted 16 paid only KRW 260 million among them, it is reasonable to evaluate that said 30% of the profits is Defendant 3’s profits; (c) thus, the lower court included KRW 62,837,482, which is 30% of the KRW 2,076,124,943, and KRW 622,837,482, which is 30% of the profits derived from the market manipulation in 20

Examining the evidence legitimately admitted and examined by the court below in comparison with the records of this case, as long as the profits of KRW 2,076,124,943 have been realized as the sale of the shares of Nonindicted Company 1, Defendant 3 had a monetary claim of KRW 622,837,482 equivalent to 30% of the profits pursuant to the agreement, and even if Nonindicted 16 made an agreement to pay only KRW 260 million after the fact that Defendant 3 had paid only KRW 260,000,000 to Defendant 3, it does not interfere with the establishment of the crime due to the fact that it had already been committed by the realization of profits. The decision of the court below to the same purport is justifiable, and there is no error of law of misunderstanding of facts or misunderstanding of legal principles.

This part of the defendant's assertion is without merit.

4. Judgment on the mistake of facts and misapprehension of legal principles by Defendant 4

(a) Invitation for committing the manipulation of market price;

1) The judgment of the court below

In light of the following circumstances, the lower court determined that: (a) around May 2012, as indicated in Article 2-A(A) of the facts constituting the crime of the lower judgment, the Defendant, upon the Defendant’s request from Defendant 3 to recommend the purchase of Nonindicted Company 1’s shares in the securities broadcasting or securities camera; (b) purchased Nonindicted Company 1’s shares through a borrowed account, etc. from June 2012, and at the same time, recognized the fact that Nonindicted Company 1 conspired to support Nonindicted Company 1’s share purchase through a securities broadcasting or securities camera, etc.; and (c) upon considering the following circumstances, it was reasonable to view that the Defendant was aware that he had a market manipulation power through Defendant 3, while having the other Defendants purchase and hold shares of Nonindicted Company 1 and participate in the market price manipulation as stated in the facts constituting the crime of the lower judgment.

(1) △△ club operated by the Defendant is comprised of 400 members with no limit of 400 members, and where the Defendant actively recommends the purchase of the recommended stocks after designating the items, the purchase price of the recommended stocks has been reached by the members under his/her control so that the share price may increase because they purchase the recommended stocks.

② It appears that △△△ members were dependent on the information presented by the Defendant regarding stock investment by paying a considerable amount of 700,000 won per month (1.5 million won upon joining the 3-month membership) and hearing the Defendant’s securities broadcasting. In fact, the trading volume of the Defendant recommended to purchase to its members on June 12, 2012 and June 13, 2012 increased rapidly, and the share price increased rapidly.

③ On April 26, 2012, Nonindicted Co. 1 had already been announced to Nonindicted Co. 28 on April 26, 2012, but the share price fell without being released from the category of investment attention. An article on the plan to possess rare soil or to produce ○○○○○○○ in the △△ iron mine was already reported around or around 2011. After the Defendant made a recommendation to its members, an article on the planned commercial production and the final production of △△△○○○○○○○○○○○○ on June 27, 2012 was reported on June 27, 2012. However, there was no particular thereafter no specific publication. The Defendant appears to have reviewed the financial status of Nonindicted Co. 1, and on the basis of the result of a thorough examination or analysis on the projects being conducted in Nonindicted Co. 1.

④ The Defendant stated at the investigative agency that “ Nonindicted Co. 3 was met with Defendant 3’s introduction. At that place, Nonindicted Co. 1 was asked from Nonindicted Co. 3 to recommend its members to sell and hold the shares purchased. From the early July 2012 when the share price continuously drops, the Defendant recommended its members to hold shares because of the 1,00 won of the 1,00 won, which he presented as his hand-on price, even after the said share price drops, because of the cry materials, the share price again fell. However, Nonindicted Co. 3 was detained on another case on July 26, 2012, and the share price continuously drops without contact, Nonindicted Co. 3 solicited its members to sell shares on August 8, 2012 (Evidence evidence Nos. 2, 1607, 3383 through 284, 287 through 286, 286).”

⑤ Defendant 3 stated at the investigative agency that “There is no fact that the Defendant promised to specify the quantity of sets to the Defendant, but it is said that the Defendant would be aware of whether Nonindicted Company 1 could seek a set prior to the increase in the share price of Nonindicted Company 1.” (Evidence Nos. 3 and 2680 of the evidence record, Defendant 3’s statement at the investigative agency that the Defendant asked for a set offer was an error, and the above statement at the court of original instance was reversed by mistake. However, as the investigation agency’s statement was more specific and following, Defendant 3’s statement at the investigative agency is more reliable, considering the circumstances that Defendant 3 tried to additionally seek a set, the statement at the investigative agency is more reliable.) Even if the Defendant used a set in the name of Nonindicted Company 109, and then asked the Defendant to provide additional sets to the Defendant 5, who attempted to obtain an offer from the Defendant 1 or 2, the Defendant did not appear to have been provided with an additional set.

④ From June 11, 2012, before recommending Nonindicted Co. 1’s shares to △△ club members, the Defendant purchased Nonindicted Co. 1’s shares from Nonindicted Co. 17 and Nonindicted Co. 18, etc., one’s own borrowed account, and subsequently, △△ club members recommended that they dispose of the shares of Nonindicted Co. 1, 201, before August 8, 2012, the Defendant distributed most of the shares held on July 25, 2012 (Evidence 110 to 115 of the Evidence List).

2) Determination of the immediate deliberation

Comprehensively taking account of the evidence duly admitted and examined by the court below and the following circumstances acknowledged by the argument in this case, the defendant, around May 2012, upon the recommendation of Defendant 3 to purchase Nonindicted Company 1’s shares in the securities broadcasting or the securities page, proposed that he would provide a set in return for supporting the share price, agreed to offer a set, and conspired to commit a crime of price manipulation in 2012 with the consent of the proposal. On June 12, 2012 and June 13, 2012, the court below's determination on the purport that the defendant would share an action of public offering with Defendant 3 and to participate in the public offering at the same time by recommending the members of the △△△△△ Group to purchase it from Defendant 3 and Nonindicted Party 3, and Nonindicted Party 21 had already been established, and there was no error in the misapprehension of legal principles as to the entire act of public offering and the participation of the defendant in the public offering after 20 years thereafter.

(1) The cooking of evidence and fact-finding belong to the exclusive authority of the fact-finding court unless they violate the rules of evidence, and there is no rule of law that the same person's testimony and testimony in the prosecutor's office should be believed to be different in the case of the same person's testimony in the court. Thus, even if the facts constituting a crime are acknowledged by reliance on the testimony in the same person's court and other prosecutor's statements in a prosecutor's office, they belong to free evaluation of evidence (see Supreme Court Decision 88Do740, Jun. 28, 198).

On December 3, 2014, Defendant 3 denied the fact that he participated in the market price manipulation 2012 at the prosecution, and asked Defendant 2 to find out that “Defendant 1 may live in the middle of the early 2012 when Nonindicted Company 1’s share price rise (3rd 2471 pages of the evidence record),” and that Defendant 2 made a statement to the effect that Defendant 1 would be aware of the fact that she would have a lot of wret while driving down Nonindicted Company 1’s business feasibility at the prosecution on December 10, 2014, and that Defendant 1 would have a lot of 3rd 6th 1st son and would have a lot of 6th 1st son 2nd 6th 6th 6th 6th 6th 6th 6th 1st 6th 6th 1st 6th 1st 6th 1st 6th 201.

As can be seen, Defendant 3 made several statements at an investigative agency to the effect that the Defendant demanded the Defendant to move in, and made a relatively concrete statement on the process thereof. Defendant 3 introduced Nonindicted 25 and Nonindicted 24 to Defendant 1 and Defendant 5 via Nonindicted 111 as a person who will support the share price of Nonindicted Company 1, and introduced Nonindicted 1 and Nonindicted 24 to Defendant 1 and Defendant 5 through Nonindicted 112 was also necessary for a person who supports the share price. The reason why Defendant 3 mentioned Defendant 3’s materials of Nonindicted Company 1 to obtain profits from the market price by using such information is not attributable to the fact that the Defendant intended to obtain profits from the market price. The reason why Defendant 3 used the materials of Nonindicted Company 1, the meaning that the Defendant would raise profits from the market price by advertising the shares of Nonindicted Company 1, and the fact that the Defendant also accepted the public relations proposal of Defendant 3, who did not have any particular friendship, and that it was contrary to the empirical rule that Defendant 3 did not present any consideration at the time of Defendant 3’s statement.

② As seen earlier, around May 2012, the Defendant received a proposal from Defendant 3 that he would be aware of the sets at the time when he requested the public relations activities of Nonindicted Company 1, and called Defendant 3 to seek a set. On June 11, 2012, the Defendant demanded Defendant 3 to seek a set even before purchasing Nonindicted Company 1’s shares, and on June 12, 2012, and on June 13, 2012, Defendant 3 recommended the purchase of Nonindicted Company 1’s shares. Defendant 3 offered that he would not simply attract investors to exercise the set, but rather pay the price for the share purchase. Accordingly, the Defendant’s understanding of the agreement and the agreement between Defendant 3 on the proposal for the crime committed by Defendant 3 constitutes a public offering.

③ A public offering or conspiracy does not necessarily require advance consultation, but includes an expression of intent at the scene of the crime (see, e.g., Supreme Court Decision 88Do1557, Nov. 22, 198). Even if the Defendant did not demand advance purchase of Nonindicted Company 1’s shares on June 11, 2012, prior purchase of Nonindicted Company 1, and recommendation for purchase from June 12, 2012, the act of Defendant 3’s performance of the role of Defendant 3, and at the same time, constitutes a share of the act of implementation, and at the same time, it can be deemed as an expression of intent to attract other competitors including Defendant 3 (the act of Defendant’s independent use of the manipulation force without Defendant 3’s proposal cannot be deemed as the same as that of Defendant’s independent use of the manipulation force), a conspiracy or a public offering relationship with Defendant 3 is established.

④ After making a recommendation for purchase on June 13, 2012, the Defendant continued to contact with Defendant 3 who requested the owner to support himself. On June 30, 2012, Nonindicted 3, along with Defendant 3, despite Nonindicted 3’s speech that Nonindicted 3 would bring the share price into KRW 5,00 or KRW 10,00, Nonindicted 3’s horse that he would raise the share price to KRW 5,00 or KRW 10,00. As such, the Defendant had an intention to realize his own interest together with Nonindicted 3 and Defendant 3, and the intention that such intention had been made only when Nonindicted 3 met, and the Defendant’s act had the intention to jointly process from June 12, 2012.

(b) Calculation of additional collection charges;

1) Fees, 6,879,978 Won, and the portion of KRW 93,292,183

원심 및 당심이 적법하게 채택하여 조사한 증거들을 종합하면, ① 피고인은 ㉠ 공소외 17 명의의 키움증권 계좌(계좌번호 1 생략), ㉡ 미래에셋증권 계좌(계좌번호 2 생략), ㉢ 유안타증권 계좌(계좌번호 3 생략), ㉣ 이트레이트증권 계좌(계좌번호 4 생략), ㉤ 공소외 18 명의의 이트레이드증권 계좌(계좌번호 5 생략), ㉥ 공소외 19 명의의 키움증권 계좌(계좌번호 6 생략) 등을 이용하여 공소외 1 회사 주식을 거래한 사실, ② 피고인은 2012년 시세조종범행으로 피고인이 얻은 이익을 159,230,996원으로 계산하는 과정에서, 수수료, 거래세 및 위 6개의 증권계좌 중 ㉡, ㉢, ㉥항 기재 증권계좌에서 발생한 손실이 반영되지 아니하였다고 주장하나, 2012년, 2013년 시세조종 혐의계좌군 부당이득표(증거기록 5권 4122, 4123쪽)에는 수수료, 매도세 합계 16,102,617원이 공제된 것으로 기재되어 있고, 위 6개 증권계좌를 포함한 8개 증권계좌에서 발생한 이익 및 손실을 모두 반영하여 피고인이 얻은 이익을 159,230,996원으로 산정한 사실을 인정할 수 있다.

This part of the defendant's assertion is without merit.

2) 22 million won transferred to Nonindicted 20

Comprehensively taking account of the evidence duly adopted and examined by the lower court and the trial court, ① the Defendant traded Nonindicted Company 1’s shares using the security account (Account No. 3 omitted) with Nonindicted 17, and sold all Nonindicted Company 1’s shares on July 27, 2012; ② thereafter, the Defendant transferred KRW 22 million out of the balance remaining in the said account to the account in August 7, 2012, to the account in the name of Nonindicted 20; ③ the Defendant temporarily used the funds received in advance upon the request of the members of ○○○ Association to purchase Nonindicted Company 1’s shares upon the receipt of the request of Nonindicted 113 Non-Party 1. Nonindicted 20 may be aware of the identity of Nonindicted Company 20. The Defendant stated that “The person related to Nonindicted Company 3124 and 3159 of the record may be recognized.”

According to the above facts of recognition, Nonindicted 20 is not a member of ○○ Association, who was issued with Nonindicted Company 113’s unlisted stocks and entrusted with funds to the Defendant, but a sales business operator other than Nonindicted Company 113, who purchased Nonindicted Company 113’s unlisted stocks (if the Defendant was a member of △△△ club who was entrusted with the funds to the Defendant, the Defendant would not be able to memory his identity and would not have any reason to return funds to Nonindicted Company 113’s unlisted stocks). The Defendant paid KRW 22 million to Nonindicted 20, not only returned profits arising from the transaction of Nonindicted Company 1’s stocks, but also paid to Nonindicted Company 113 by paying Nonindicted Company 113 to Nonindicted Company 1, thereby using funds that he was entrusted to the Defendant for its original purpose.

Even if the non-indicted 20 is a member of the △△△ Group, who received the non-indicted 113 non-indicted 13 stocks from the defendant, the non-indicted 13 members agreed to purchase the non-indicted 113's non-indicted 13's non-indicted 13's non-indicted 13's non-indicted 1's shares, and thus, they did not agree to divide profits earned from trading the non-indicted 1's shares (it cannot be deemed that the defendant who traded the non-indicted 1's shares with the above members' profits would have been divided into profits with the above members). The profits earned by the defendant from selling the non-indicted 1's shares on July 27, 2012 are clear that all profits accrued to the defendant, and the 220 million won paid to the non-indicted 20's non-indicted 1

This part of the defendant's assertion is without merit.

3) Determination ex officio on the part of KRW 17,362,341, and KRW 38,234,116, which occurred from the securities account held by Nonindicted 100 and Nonindicted 99

According to the unjust enrichment table of the Account Account in 2012 and 2013 (Evidence Record 5: 4122, 4123 pages), the profits accrued from the securities account in the number of Nonindicted 100 and the profits accrued from the securities account in the name of Nonindicted 99 are included in KRW 159,230,96.

① However, on December 23, 2014, the Defendant stated at the prosecutor’s office that “Non-Indicted 9 was aware of Non-Indicted 17’s address and used Non-Indicted 9’s securities account. However, Non-Indicted 17’s wife was known, and Non-Indicted 18. The Defendant stated that “Non-Indicted 99 and no memory was available for taking the securities account” (Evidence 3157 pages), ② the account in the name of Non-Indicted 9 was opened at the last place on May 16, 2012 (Evidence 7No. 5294 pages) and there was no special circumstance to deem that the Defendant used the said securities account or profits earned therefrom belongs to Non-Indicted 9, Non-Indicted 17, Non-Indicted 10, Non-Indicted 10, the Defendant purchased the securities account under the name of Non-Indicted 10, Non-Indicted 10, Non-Indicted 19, and the Defendant purchased the securities account under the name of Non-Indicted 10, the Defendant’s statement.

The defendant's profits derived from the manipulation of market price in 2012 are 103,634,539 won (159,230,996 won - 17,362,341 won - 38,234,116 won which the court below acknowledged.

Therefore, the lower court cannot collect more than KRW 103,634,539 from the Defendant. Therefore, there is an error of misunderstanding of facts or misunderstanding of legal principles that the lower court collected KRW 159,230,996 from the Defendant.

5. Judgment on the mistake of facts and misapprehension of legal principles by Defendant 5

A. The portion of 76,397 shares converted from the exercise of a unit on June 26, 2012

Comprehensively taking account of the evidence duly adopted and examined by the lower court and the trial, the fact that Nonindicted Company 1’s shares 776,397 shares were deposited in KRW 49,99,668 on July 6, 2012 and was sold in total in KRW 903,93,345 (unit price 1,164 won) on July 9, 2012 (Evidence 5 No. 4106 pages).

The lower court recognized only KRW 1,327,316,518 as profits earned by the Defendant after deducting the fee and transaction tax from KRW 403,93,67 ( KRW 903,93,345 - KRW 49,99,668) from KRW 776,397 without deducting the fee and transaction tax from the profits earned by Nonindicted 15 in relation to KRW 776,397. The lower court determined that only KRW 1,327,316,518 was deducted from KRW 403,93,677 as profits earned by the Defendant. The lower court’s determination is justifiable, and there is no error of misapprehending the legal principles or misapprehending the legal principles. As long as the sales unit price of KRW 776,397 is confirmed to have been KRW 1,164, the profits of Nonindicted 15 cannot be calculated on the basis of KRW 1,324.

This part of the defendant's assertion is without merit.

B. 609,180 shares entered into on June 5, 2012

According to the evidence No. 10 submitted by the Defendant, the Defendant, on March 21, 2012, sold 609,180 shares of Nonindicted Party 1 to Nonindicted Party 15 in KRW 501,35,140 (the trading unit price of KRW 823 won per share) and obtained a fixed date on March 22, 2012 in the sales contract, and on June 5, 2012, 609, KRW 410,587,320 (the trading unit price of KRW 674 won per entry) below the selling price to the securities account in Nonindicted Party 15 on June 5, 2012.

609,180 shares were put into the securities account in the name of Nonindicted 15, and thus, barring any special circumstance, such as that the Defendant used the securities account in the name of Nonindicted 15 as a borrowed account, the profits accrued from the securities account in the name of Nonindicted 15 should be deemed to belong to Nonindicted 15, the nominal owner. Furthermore, according to the above facts of recognition, the Defendant sold Nonindicted 15, 609,180 shares to Nonindicted 15, even if Nonindicted 15, at the time of suffering, did not pay the sales amount to the Defendant, so long as the Defendant entered the securities account in the name of Nonindicted 15, and fulfilled the seller’s obligation as the seller, the ownership of the said 609,180 shares was transferred to Nonindicted 15, and the amount of money deposited on June 5, 2012 was lower than KRW 90,000,000,000,000,000,000).

This part of the defendant's argument is justified.

C. The portion of 200,000 shares converted from the exercise of a unit on April 25, 2012

Comprehensively taking account of the evidence duly adopted and examined by the lower court and the trial, the Defendant lent KRW 500 million to Nonindicted Company 1 for the purpose of redemption BW (the first commitment repayment date was March 12, 2012, but was thereafter extended to May 13, 2012) on January 13, 2012; (2) the amount of KRW 100 million out of the above loan was delivered to Nonindicted Company 15’s funds (Evidence 9 submitted by the Defendant); and (3) on April 24, 2012, the Defendant agreed to recognize the amount of KRW 500 million in the name of Nonindicted Company 1’s third-party company’s share issued on April 24, 2012 (Evidence 9 submitted by the Defendant); and (3) the fact that the Defendant agreed to grant KRW 500 million out of the face value of Nonindicted Company 1’s share issued on May 13, 2012, in the name of Nonindicted Company 13.

Unless there exist special circumstances, such as that the Defendant, who entered the securities account in the name of Nonindicted Party 15, used the securities account in the name of Nonindicted Party 15 as a borrowed account, the ownership of Nonindicted Party 15 ought to be deemed to be the ownership: Provided, That an agreement was concluded between the Defendant and Nonindicted Party 15 on the part of Nonindicted Party 1’s loan amounting to KRW 400 million out of KRW 500,000,000,000 for Nonindicted Party 1, 200,000, and the remainder of KRW 150,000,000 for KRW 2 million was to be owned by Nonindicted Party 15 (Evidence No. 13), and the Defendant also recognized that the securities account in the name of Nonindicted Party 15 was used as a borrowed name among KRW 1,00,000,000 for the remaining shares, and thus, the profits from the transaction ought to be deemed to be reverted to Nonindicted Party 15.

Meanwhile, without any distinction between the above 100,00 won and 609,180 won for five times [243,516,50 won for sale] 209,180 won for 233,407,500 won (1,167 won for sale), 362,75,200 won (1,813 won for sale), 151,96,300 won for 200, 2000 won for 2050, 209, 208, 3069, 206, 300 won for sale under the order of 150, 200 won for 205, 306, 306, 200 won for sale under 205, 306, 306, 400 won for sale under 96, 206, 200 won for 205, 3000 won for sale under the same order

본문내 포함된 표 이익의 주체 주식수 매도대금 입고금액 수수료 및 거래세 이익 공소외 15 776,397주 903,933,345원 499,999,668원 403,933,677원 피고인 800,000주 1,024,947,642원 400,000,000원 15,788,127원 609,159,515원 공소외 15 200,000주 1,228,744,323원 100,000,000원 ＆#160; 718,157,003원 공소외 15 609,180주 410,587,320원 ＆#160; 합계 2,385,577주 3,157,625,310원 1,410,586,988원 ＆#160; 1,731,250,195원

D. The acquisition value of 800,000 shares of 1,000,000 shares

The Defendant asserts that unjust enrichment relating to 800,000 weeks converted from the exercise of a set shall include the difference between the share price and the share price of Nonindicted Company 1, formed at the time of the exercise of a set, as the expectation for the cancellation of an investment call of Nonindicted Company 1, and that the difference between the share price and the share price of Nonindicted Company 1, which was formed at that time, shall be calculated again based on the minimum price (651 won) after January 13, 2012, which is the day immediately preceding the date of commencement of the market price manipulation, rather than the unit price exercise price.

However, as seen in Article 3-2(b)(4)(b), even if the share price has increased to 980 won as the expectation for cancelling the investment share by April 30, 2012, such increase has immediately ceased after April 30, 2012 (in spite of Non-Party 3’s market price manipulation, up to May 9, 2012), and it is reasonable to view that the Defendant’s disposal of KRW 800,00 (over to June 19, 2012, KRW 120,417,587 ± 800) and KRW 500 (in addition, the difference between the average selling unit price and KRW 900 and KRW 500 cannot be deemed to have been included in the share price increase to KRW 408(508).

Then, the lower court’s determination that the difference between the lower court and the lower court 1 on April 25, 2012 (853 won) or the lowest price (651 won) after January 13, 2012 should be excluded from the profits for which causation is recognized, as seen in Article 3-b. 5 (1) and (5) of the former Enforcement Decree of the former Enforcement Decree of the Financial Investment Services and Capital Markets Act, was anticipated to obtain profits equivalent to the difference between the disposal price and the exercising price of the company 1 through the management of the market price such as the price manipulation (50 won) and the 10th anniversary of the event of the former Enforcement Decree of the former Enforcement Decree of the former Enforcement Decree of the Financial Investment Services and Capital Markets (50 won) and the 5th anniversary of the fact that the latter Enforcement Decree of the former Enforcement Decree of the former Enforcement Decree of the Financial Investment Services and Capital Markets (50 won) and the latter Enforcement Decree of the Financial Investment Services and Capital Markets Act (50 won). The difference between the latter Enforcement Decree of the 1000000 won and the latter.

This part of the defendant's assertion is without merit.

6. Determination ex officio on Defendant 3

Before determining the Defendant’s assertion of unreasonable sentencing, this paper examines ex officio.

As seen earlier in Article 3-b.2(b)(b), among the facts charged as to the conduct of manipulation in 2012, the portion of the attached Table II-2 year 1827, 1829, 1843, 2211 and the attached Table II-3 year 467, 1318, 1320, 1321 among the facts charged as to the conduct of manipulation in 2012 should be acquitted as it falls under the case where there is no proof of a crime. Nevertheless, the court below erred by misunderstanding the fact that the court below found the defendant guilty of this part of the prosecution room and thereby adversely affected the judgment.

7. Conclusion

Since the appeal by Defendant 1, Defendant 2, and Defendant 5 is partly well-grounded, pursuant to Article 364(6) of the Criminal Procedure Act, the part on Defendant 1, Defendant 2, and Defendant 5 (including the part on acquittal of reasons against Defendant 1 and Defendant 2) among the judgment of the court below is reversed, and the part on Defendant 3 and Defendant 4 among the judgment of the court below on the ground of ex officio reversal as seen above. Thus, the part on Defendant 3 and Defendant 4 among the judgment of the court below is reversed without examining the argument on unfair sentencing by Defendant 3 and Defendant 4 under Article 364(2) of the Criminal Procedure Act, and the part on Defendant 3 and Defendant 4 among the judgment of the court below

The summary of this Court’s facts constituting an offense and its evidence is as follows: “30 securities accounts, such as non-indicted 10, etc.,” written on 17th 10 B. 17th of the judgment of the court below; “10 securities accounts,” and “7,612,39 high-priced purchase orders over 4,925 times” written on 19th 2-2 (excluding No. 1827, 1829, 1843, 2211) and written on 36th 17th 4921; “3,500 high-priced purchase orders” written on 196th 2,622, 2636, 3636, 195 second 7th 16th 196 of the Criminal Procedure Act;

1. Article relevant to the facts constituting an offense and the selection of punishment;

A. Defendant 1: Articles 43(2)1, 443(1)4, and 5, 176(1)1, 2, and 3, and (2)1, and 447 of the former Financial Investment Services and Capital Markets Act (amended by Act No. 11845, May 28, 2013; hereinafter the same shall apply), Article 30 of the Criminal Act (generally, the manipulation of market price in 2012, the choice of limited imprisonment, the concurrent imposition of fines), Articles 443(1)4 and 5, 176(1)2, 36(2)1, Article 30 of the Criminal Act (generally, 2013; hereinafter the same shall apply); Article 37(1)4, Article 37 of the Criminal Act of the Specific Economic Crimes Act; Article 443(1)4 and 37 of the former Financial Investment Services and Capital Markets Act (amended by Act No. 11845; hereinafter the same shall apply);

(b) Defendant 2: Article 443(1)4 and 5 of the former Financial Investment Services and Capital Markets Act, Article 176(1)1, 2, 3, and (2)1 of the Criminal Act, Article 30 of the Criminal Act (generally referred to as "market price manipulation", Article 443(2)1, 4, and 5 of the former Financial Investment Services and Capital Markets Act, Article 176(1)1, 2, 3, and 176(2)1 of the former Financial Investment Services and Capital Markets Act, Article 30 of the Criminal Act (generally referred to as "market price manipulation", Article 443(1)1, 4, and 5, Article 176(1)1, 2, and 3, and (2)1 of the former Financial Investment Services and Capital Markets Act, Article 30 of the Criminal Act

(c) Defendant 3: Articles 443(1)4 and 5, 176(1)1, 2, 3, 47(2)1, and 447(1) of the former Financial Investment Services and Capital Markets Act, and Article 30 of the Criminal Act (limited to annual manipulation, each of the manipulation of market prices of 2009 and 2012, each of which is selected as imprisonment, and both penalties);

D. Defendant 4 and Defendant 5: Each of the former Financial Investment Services and Capital Markets Act, Article 43(1)4 and 5, Article 176(1)1, 2, 3, and 176(2)1, 3, and 1 of the former Financial Investment Services and Capital Markets Act, Article 30 of the Criminal Act

1. Handling concurrent crimes;

(a) Defendant 2: The latter part of Articles 37 and 39(1) of the Criminal Act (the crime of violation of the Financial Investment Services and Capital Markets Act and the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), the crime of violation of the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement)

(b) Defendant 4: The latter part of Articles 37 and 39(1) of the Criminal Act (trade between a violation of the Financial Investment Services and Capital Markets Act and a violation of the Financial Investment Services and Capital Markets Act, for which judgment

1. Aggravation for concurrent crimes;

(a) Defendant 1: the former part of Article 37, Articles 38 (1) 2 and 50 of the Criminal Act (a)

(b) Defendant 2: the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (within the scope of the sum of the long-term punishments of two crimes as stipulated in the Financial Investment Services and Capital Markets Act due to the manipulation of market prices in 2012 heavier than the punishment)

(c) Defendant 3: the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (the weight of concurrent crimes to imprisonment provided for in the Financial Investment Services and Capital Markets Act due to manipulation of market price in 2012 with heavier penalty)

1. Discretionary mitigation;

A. Defendant 1: Article 53, Article 55(1)3, and Article 55(1)6 of the Criminal Act (The following circumstances considered as favorable among the reasons for sentencing)

B. Defendant 2: Articles 53 and 55(1)3 of the Criminal Act (hereinafter referred to as “contributive circumstances”)

1. Detention in a workhouse;

Defendant 1 and Defendant 3: Article 70 of the former Criminal Act (Amended by Act No. 12575, May 14, 2014); Article 69(2) of the Criminal Act

1. Suspension of execution;

Defendant 3 and Defendant 5: Article 62 of the Criminal Act

1. Additional collection:

Defendant 2, Defendant 4, and Defendant 5: Articles 10(1) and 8(1)1 of the Act on Regulation and Punishment of Criminal Proceeds Concealment

1. Order of provisional payment;

Defendants: Article 334(1) of the Criminal Procedure Act

1. Defendant 1

(a) Scope of applicable sentences under law: Imprisonment with prison labor for up to six months from June 22 and fine of up to 25,000 won from June 22 to fine of up to 9,585,01,797 won;

(b) Scope of recommendations based on the sentencing criteria:

1) Basic crime: Violation of the Financial Investment Services and Capital Markets Act in its holding;

[Determination of Type] Securities and Financial Crimes

[Special Person] Where the Criminal Code is very poor;

[Recommendation and Scope of Recommendations] Aggravation, 7-1 years of imprisonment

2. Competitive Crimes: Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) in the holding;

[Determination of Punishment] General Fraud> Type 3 (at least 500 million won, but less than 5 billion won)

[Special Mitigation] In the case of an intentional act of deception, or where the degree of deception is weak, the case where the penalty is not imposed or the damage is recovered in a considerable part.

[Recommendation and Scope of Recommendations] Special Mitigation Area, 9-4 years of imprisonment

3) The scope of final sentence according to the standards for handling multiple crimes: Imprisonment with prison labor for 7 to 13 years;

(c) Determination of sentence;

In 2012 and 2013, market price manipulation obstructed the formation of fair price in supply and demand in the stock market, thereby hindering the fostering and development of the sound stock market, and also causing unexpected damages to unspecified general investors participating in stock transactions. The Defendant committed a serious crime that requires strict punishment. The Defendant, in 2012, received the price for exercising a set of KRW 6.75 million from Nonindicted Company 1 to raise funds for the operation of the Company, and obtained approximately KRW 1.7 billion from Nonindicted Company 2’s price manipulation by using the set of Nonindicted Company 1 owned by Nonindicted Company 2 to obtain profits from the market price manipulation. In light of the circumstances that Nonindicted Company 1 1 2 2013 200,000 won, the Defendant conspired with Nonindicted Company 3 2 2013 200,000 won, and thus, did not seem to have been subject to the Defendant’s intent or ability to repay the said money. In light of such circumstances, the Defendant could not be deemed to have taken advantage of the intent and capacity of the Defendant 4000 billion.

However, the Defendant did not actively planned to stop the market price manipulation by using the set from the beginning, but rather, it appears that Defendant 2, who was introduced through Defendant 5, was involved in the market price manipulation in 2012 from the beginning by transferring the set 10 million stock holding by Nonindicted Company 2 to Defendant 2, and that the market situation was more negative than anticipatedly flowing, and was involved in the more depth of the crime due to the interest linked to the Defendant’s accomplices. In lieu of the price for the use of the set paid in Nonindicted Company 1 or the market price generated by Nonindicted Company 2’s use of the set, it appears that the Defendant was used for the redemption of Nonindicted Company 1’s operating funds or the investment funds by Nonindicted Company 2, and it does not appear that the Defendant personally gains profits from the use of the set. The instant fraud did not appear to have been reduced by dolusorous intent as a borrowed money fraud. The victim of the fraud wanting to have expressed his intent to punish the Defendant against the Defendant, and that the Defendant did not have been punished for the above Defendant’s business progress.

In addition to the above circumstances, the defendant’s age, character and conduct, family relation, environment, motive and background of the crime, the means and consequence of the crime, and the circumstances after the crime, etc., as stated in the arguments in this case and the sentencing conditions indicated in the records, shall be determined as per the disposition.

2. Defendant 2

(a) Scope of applicable sentences under law: Imprisonment with prison labor for up to two years from six months to 20 years;

(b) Scope of recommendations based on the sentencing criteria: Non-application of the sentencing criteria because they are concurrent crimes in the latter part of Article 37 of the Criminal Act

(c) Determination of sentence;

Although the Defendant, as an attorney-at-law, has to take the initiative in the maintenance of social order and the improvement of the legal system based on the mission of protecting fundamental human rights and realizing social justice, the Defendant has committed a manipulation crime in 2009 and 2012 by using his own position and legal knowledge. The Defendant has been punished four times as a suspended sentence, and two times as a result of which the Defendant has been punished for a crime in violation of the Securities and Exchange Act. In 2009, a manipulation crime in 2009 began while being tried for a crime in violation of the Securities and Exchange Act, and the Defendant committed a manipulation crime in 2012 during the suspended sentence. The manipulation crime in 209 and 2012 began with the Defendant’s initiative and led by the Defendant to determine the market price of KRW 1.6 billion by converting the two. These circumstances are disadvantageous to the Defendant.

However, since each of the crimes in this case is related to the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) for which judgment has become final and conclusive, it is necessary to consider equity in the case of judgment at the same time. Although the defendant led the market price manipulation crime in 2012, each of the accomplices committed the crime according to his own interests, and does not seem to have been in the position of controlling or infusing the overall crime. These facts are favorable to the defendant.

In addition to the above circumstances, the defendant’s age, character and conduct, family relation, environment, motive and background of the crime, the means and consequence of the crime, and the circumstances after the crime, etc., as stated in the arguments in this case and the sentencing conditions indicated in the records, shall be determined as per the disposition.

3. Defendant 3

(a) Scope of applicable sentences under law: Imprisonment for one month to ten years, and fine of 50,000 to 19,170,03,594 won;

(b) Scope of recommendations based on the sentencing criteria;

[Determination of Type] Securities and Financial Crimes

[Special Person] Where the Criminal Code is very poor;

[Recommendation and Scope of Recommendations] Aggravation, 7-1 years of imprisonment

(c) Determination of sentence;

The Defendant participated in the market price manipulation in 2009 by submitting a direct market price manipulation order. In the course of the market price manipulation crime in 2012, the Defendant introduced the market price manipulation force to Defendant 1, and brought Defendant 4 into the criminal act with the ability to support the share price, thereby contributing to the increase of the share price. Nonindicted 16 had Nonindicted 16 exercise the market price rate of 2 billion won, thereby obtaining a huge profit exceeding 2 billion won, and some of which were distributed to him. These factors are disadvantageous to the Defendant.

However, the Defendant did not seem to have led the criminal conduct of market manipulation in 2012 or to have submitted the market manipulation order in the market, but appears to have engaged in soliciting accomplices by using beer and participating in obtaining gains from market price by committing other accomplices. The Defendant has no record of punishment except for those punished three times by a fine due to the crime of this kind. These points are favorable to the Defendant.

In addition to the above circumstances, the defendant’s age, character and conduct, family relation, environment, motive and background of the crime, the means and consequence of the crime, and the circumstances after the crime, etc., as stated in the arguments in this case and the sentencing conditions indicated in the records, shall be determined as per the disposition.

4. Defendant 4

(a) Scope of applicable sentences under law: One month to ten years of imprisonment;

(b) Scope of recommendations based on the sentencing criteria: Non-application of the sentencing criteria because they are concurrent crimes in the latter part of Article 37 of the Criminal Act

(c) Determination of sentence;

The Defendant, taking advantage of the position of the securities broadcasting list, committed a stock manipulation crime in 2012 by using its members of the Korea Securities and Exchange, and thereby, caused enormous losses to its members. The Defendant, prior to recommending its members to purchase, gave rise to the trust of its members, such as: (a) prior purchase; and (b) disposal of the shares prior to the recommendation to sell them; and (c) avoid losses. The Defendant, upon recommending the purchase through the securities broadcasting and the securities page, obtained a rapid increase in the stock price of Nonindicted Company 1; and (d) obtained enormous profits to the accomplices who used them; (b) while taking advantage of such circumstances, the Defendant suffered significant losses to many and unspecified general investors who participated in a stock transaction. Such factors are disadvantageous to the Defendant.

However, since the instant crime is in a relationship between the crime of violation of the Financial Investment Services and Capital Markets Act and the crime of latter concurrent crimes under the latter part of Article 37 of the Criminal Act, equity should be considered at the same time with the case of judgment. Unlike other accomplices, the participation in the instant crime at the time of the lapse of one month after the commencement of the manipulation of market price in 2012, and the profits accrued from the manipulation of market prices that did not receive the allocation of the sets are relatively high. These factors are favorable

In addition to the above circumstances, the defendant’s age, character and conduct, family relation, environment, motive and background of the crime, the means and consequence of the crime, and the circumstances after the crime, etc., as stated in the arguments in this case and the sentencing conditions indicated in the records, shall be determined as per the disposition.

5. Defendant 5

(a) Scope of applicable sentences under law: One month to ten years of imprisonment;

(b) Scope of recommendations based on the sentencing criteria;

[Determination of Type] Securities and Financial Crimes

[Special Person] Where the Criminal Code is very poor;

[Recommendation and Scope of Recommendations] Aggravation, 7-1 years of imprisonment

(c) Determination of sentence;

The Defendant introduced Defendant 1 to Defendant 2, and thereby, linked Defendant 1 and Defendant 2 in the course of the manipulation of market price in 2012, including introducing Nonindicted Co. 1’s business investment in Nonindicted Co. 28 and the formation of the agreement on the transfer of sets between Defendant 2 and Defendant 2. Furthermore, in the course of the manipulation of market price in 2012, the Defendant managed Defendant 1 and Defendant 2 by being in charge of the duties related to the exercise of sets and the profit sharing from the exercise of sets, and thereby, managed the manipulation of market price in 2012. In addition, in lieu of the repayment of the loan claim against Nonindicted Co. 1, the Defendant obtained approximately KRW 600 million profits by being converted into a set, thereby gaining gains from the market price

However, the Defendant has no record of punishment except for punishment by a fine on one occasion due to the crime of this kind. The Defendant, not only was engaged in market price manipulation but also engaged in the non-indicted 1 company's company's company's business as a director in the process of performing its duties, seems to have been involved in the manipulation of market price in 2012. These points are favorable to the Defendant.

In addition to the above circumstances, the defendant’s age, character and conduct, family relation, environment, motive and background of the crime, the means and consequence of the crime, and the circumstances after the crime, etc., as stated in the arguments in this case and the sentencing conditions indicated in the records, shall be determined as per the disposition.

1. Defendants 1 and 2

A. Of the instant facts charged against Defendants 1 and 2, the lower court acquitted Defendants 1 and 2 on the part of KRW 3,137,871,554, which exceeded KRW 7,407,592,973, out of KRW 10,545,464,527, which was derived from market price manipulation in violation of the Financial Investment Services and Capital Markets Act in 2012.

Since the prosecutor did not appeal against this, the part of acquittal in the above reason was judged differently from the guilty part in accordance with the principle of no appeal. However, the part of acquittal in the above reason was excluded from the target of attack and defense between the parties, so the conclusion of the judgment of the court below is followed.

B. Summary of the facts charged

In addition to the facts stated in the judgment below, Defendant 1 and Defendant 2 issued an order for high-priced purchase of 103,397 shares over four occasions, as described in attached Table II-2, No. 1827, No. 1829, 1843, and 2211, for the purpose of inducing transactions through two securities accounts in the name of Nonindicted 10 and Nonindicted 99 from May 2, 2012 to July 27, 2012, Defendant 1 and Defendant 2 submitted an order for high-priced purchase of 103,397 shares over four occasions, such as the listed in attached Table II-3, No. 467, 1318, 1320, and 1321, and submitted an order for low-priced price manipulation of 200,000 shares over eight times, and acquired 6,390,410,50 won over 194,57

C. Determination

Of the amount of unjust enrichment of KRW 10,545,464,527 exceeding KRW 7,407,592,972,554, the lower court’s conclusion is followed with respect to the portion of KRW 3,137,871,554, which exceeds KRW 6,390,01,198, and the portion of KRW 1,017,591,75 in excess of KRW 2-1,01,198 shall be deemed to have been found not guilty under the latter part of Article 325 of the Financial Investment Services and Capital Markets Act, and Article 325 of the same Act shall not be deemed to have been found guilty under the latter part of Article 325 of the same Act, and Article 325 of the same Act shall not be deemed to have been found not guilty under the latter part of the Criminal Procedure Act, and Article 325 of the same Act shall not be deemed to have been found guilty under the latter part of the same Act.

2. Defendants 3, 4, and 5

A. Summary of the facts charged

In addition to the facts stated in paragraph (2) of the judgment, Defendant 3, Defendant 4, and Defendant 5 submitted an order for high-priced purchase of 103,397 shares of Nonindicted Company 1, including Non-Indicted 2, No. 2, No. 1827, No. 1829, No. 1843, and No. 2211, for the purpose of inducing sale and purchase through two securities accounts in the name of Non-Indicted 100 and Non-Indicted 99 from May 2, 2012 to July 27, 2012, and operated an order for high-priced purchase of 103,397 shares every four times as indicated in the attached Table II-3, No. 467, No. 1318, 1320, and 1321.

B. Determination

This constitutes a case where there is no proof of a crime as prescribed in Article 3-2(b) of the Criminal Procedure Act, and thus, it should be pronounced not guilty of this part of the charges under the latter part of Article 325 of the Criminal Procedure Act. However, as long as it is found guilty of a violation of the Financial Investment Services and Capital Markets Act of 2012, which is a single comprehensive crime,

[Attachment]

Judges Kim Jong-sung (Presiding Judge)

(1) Although the Defendant alleged a mistake of facts in the statement of grounds for appeal as the grounds for appeal, the Defendant explicitly withdrawn the assertion of mistake of facts on the third trial date of the trial of the party, and asserted only unfair sentencing grounds.

Note 2) The remaining Defendants did not dispute this part as the grounds for appeal, but since this part is common to all the Defendants, they are judged not guilty as to the remaining Defendants while rendering a new judgment.

3) The lower court recognized Nonindicted Company 2 as KRW 7,407,592 and KRW 7,407,592 and KRW 973 on the premise that Nonindicted Company 2 obtained the profit of KRW 2,005,193,462, Defendant 5’s profit of KRW 1,327,316,518, and Defendant 4’s profit of KRW 159,230,996, and Defendant 4’s profit of KRW 1,761,35,147, and Defendant 5’s profit of KRW 609,159,515, and Defendant 4’s profit of KRW 103,634,539, and the aggregate of the unjust profit of KRW 1,017,591,75,639,90,98,198.