The elements of a violation of the Securities and Exchange Act on the Restriction on Discretionary Transactions

The violation of the Securities and Exchange Act on the Regulation on the Restriction of Discretionary Transactions is a requirement for a securities company to conduct discretionary transactions on commission of the kinds and items of securities, classification of the sale and purchase, or to make an investment in another person's property with discretionary authority, even if it continues to engage in such transactions for profit making purposes by a corporation or natural person which is not a securities company.

Articles 70-2(3), 107(1), and 208 subparag. 3 of the Securities and Exchange Act

Defendant 1 and one other

Defendants are not guilty.

The facts charged of this case are those who worked as the vice head of the branch office of the defendant 2 corporation from January 1, 1985 to January 20, 1990. The defendant 2 corporation is a corporation aimed at the sale and purchase of securities, consignment sale, etc., and when the defendant 1 is entrusted with the sale and purchase of securities from customers, the type and item of securities and the classification of the sale and purchase, etc. must be decided by the customer. However, at around 10:00 on August 12, 1989, the defendant 1 violated the above restriction on the defendant 2's purchase and sale of new stocks from the above 3 employees, such as deposit money deposited in the office of the branch office of the defendant 20 company from the 1985 to January 20, 1990, and on credit incidental thereto, the above restriction on the defendant 2's purchase and sale of new stocks from the above 360,700,700,000 won and the above 28,06,08,06,0.

Except as otherwise provided for in this Act, the Securities and Exchange Act provides that "no person shall engage in the business of making an investment on behalf of another person after being entrusted with the whole or part of judgment on investment in securities" in Article 70-2 (3) shall be subject to comprehensive prohibition and Article 107 (1) of the same Act provides that "in case a securities company is entrusted by a customer with the sale and purchase transaction of securities, the securities company may carry out such transactions under the discretion of the customer only on the quantity, price, and time of such transaction. In this case, the types, items, and classification and methods of such securities shall be subject to a decision of the customer." In this case, the securities company exceptionally provides that the securities company shall exceptionally carry out the sale and purchase of securities only on the account of an agreement with the customer, and any person who violates the provisions of Articles 70-2 (3) and 107 (1) shall be punished by imprisonment for not more than three years or by a fine not exceeding 20,000,000 won under the Securities and Exchange Act.

Therefore, the facts charged in this case, which held Defendant 2, the employer of Defendant 1, pursuant to Article 215(2) of the Securities and Exchange Act, is not a case where each crime is not committed, not guilty pursuant to the former part of Article 325 of the Criminal Procedure Act, since it did not engage in the discretionary sale transaction of shares as to Defendant 1, a natural person, but violated the limited provisions of the securities company's discretionary sale and purchase of shares.

Judges Cho Jae-sung