(영문) 서울중앙지방법원 2015.7.23. 선고 2013고합1453 판결

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Cases

Defendant

Prosecutor

Defense Counsel

Imposition of Judgment

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글꼴

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줄 간격

자간(%)

(영문) 서울중앙지방법원 2015.7.23. 선고 2013고합1453 판결

(분리)가.자본시장과금융투자업에관한법률위반나.배임증재다.배임수재

Cases

1. Violation of the Financial Investment Services and Capital Markets Act

(b) Property in breach of trust;

Defendant

1.(a) A

2.(a) B

3.(c)(c)

4.(c)(d)

5.(c)(E);

6.(a)F

7.(a) G.

Prosecutor

Is-hosive (prosecutions), Jinsive (Trial)

Defense Counsel

Law Firm H (for Defendant A)

Attorney I, J

Law Firm K (Defendant B)

Attorney L, M

Law Firm N (Defendant C)

Attorney 0, P

Law Firm Q (Defendant D)

Attorney R, S

Law Firm T (for Defendant E)

U, V, and W

Law Firm X (For the defendant F)

Y. Law Firm

Attorney Z (for the defendant G)

Imposition of Judgment

July 23, 2015

Text

Defendant A’s imprisonment for three years, Defendant B’s imprisonment for two years, Defendant C’s imprisonment for six months, Defendant D’s fine for five thousand won, Defendant E, and F, respectively, shall be punished by imprisonment for eight months.

When Defendant D fails to pay the above fine, the above Defendant shall be confined in a workhouse for a period calculated by converting KRW 100,000 into one day.

However, the execution of each of the above sentence shall be suspended for 4 years for Defendant A, for 3 years for Defendant B, and for Defendant C and F, for 2 years for each of the above sentence.

Each violation of trust against Defendant A and B, each violation of trust against Defendant C, D, and E, each violation of trust against Defendant C, D, and deceased G, shall be acquitted, respectively.

The summary of the judgment on Defendant A, B, C, D, and E shall be published. The summary of the judgment on Defendant G shall be published.

Reasons

Criminal facts

1. Status of the Defendants

From December 2008, Defendant A, a company listed on KOSDAQ, took part in the actual management of AA (including AB, around November 7, 2008, to AC, and from AC to A, around July 6, 2010, to AA; hereinafter referred to as “AA”) and becomes the largest shareholder on February 26, 2009 (including shares of specially related persons AD), and was registered as the representative director on September 11, 2009 and is operating AAA until now.

Defendant B is a representative director of AE, director of AF (hereinafter referred to as “AF”), director of AG (hereinafter referred to as “AG”), and director of AG (hereinafter referred to as “AG”), from November 2009 to around March 30, 2010, who was appointed as a representative director of AE and has been operating AA until now.

Defendant C is a person who works as an investment adviser of one speculative securities and gives customers a recommendation for a stock transaction consultation and issue and makes a stock transaction through a customer account.

On October 16, 2009, Defendant E was sentenced to six months of imprisonment with prison labor for attempted fraud at the Seoul Western District Court on December 29, 2009, and completed the execution of the sentence on December 29.

Defendant D is a person who has been in charge of the management of the assets of Defendant E and AL while working as a regular manager of Company AK in the past.

Defendant F is the representative director of the AF.

2. The first market price manipulation (the joint criminal conduct of Defendants A, B, C, D, and E);

(a) The background and conspiracy of crimes;

From December 2008, Defendant A sold 100% of the shares of Defendant A in accordance with the proposal of Defendant B, each of whose representative directors is Defendant A, to take over the management rights of AA, sold 100% of the shares of AG owned by Defendant A to A and paid for the short-term rent of AG to AG, such as arranging the amount of 10 billion won for contingent debts of AM and N, the former management, and using the funds of AG acquired by Defendant A.

In addition, in order to conceal the fictitious payment amounting to KRW 8.4 billion, after making a transaction statement in the form of "one hundred billion won in total under the name of contract deposit and intermediate payment," in the form of "the purchase of mining rights (registration number AP) in the military producing AP and the military producing AS (registration number)" from AO to purchase 2/3 shares of the mining rights (hereinafter referred to as the "mining rights in this case") in order to conceal the fact of the fictitious payment amounting to KRW 8.4 billion, the problem was that the sum of KRW 10 billion in total under the name of contract deposit and intermediate payment was paid to AO, and that it was calculated falsely as KRW 10 billion in advance, which is the current assets of AAA. In order to solve this problem, Defendant A and B sold part of the price to AA owned by Defendant A to solve the problem of false appropriation of KRW 10 billion in advance, and at the same time, received the donation with intent to use the donated

On September 24, 2012, Defendant A and B: (a) terminated the pledge on the shares held by Defendant A in the name of 1,334,458; (b) sold 1,334,458 shares under the name of AU; and (c) sold some of the proceeds thereof to AA; (b) sold 1,334,458 shares under the name of AU; and (c) sold 1,334,458 shares under the name of A; and (d) sold 2-8 shares under the name of A as of September 2012; and (e) sold shares within 1,334,458 shares as at September 2, 2012, Defendant A and B planned to prevent the purchase of shares by paying a certain price for the purchase to the purchaser; and (e) notifying the buyer of the sale volume and time in advance; and (e) sold shares by means of preventing the purchase of shares.

Accordingly, Defendant B sold the above shares through the Han T&S AV, which is a high school, and notified Defendant C, which is a senior ship of high school, of the volume and time of sale, and decided to purchase the shares by Defendant C, etc.

Defendant D introduced Defendant E to a person who will purchase the above AA shares upon Defendant C’s request, and Defendant C introduced Defendant A to Defendant B, etc. who will purchase the shares of Defendant A.

During September 2012, Defendants C and E received part of the sales volume, and conspired to receive a certain amount of money in return, so that Defendants C and E can sell approximately 1,34,458,000 shares of AA owned by Defendant A in order to prevent the share price decline among 1,334,458 shares of 1,00,000 shares or 10,000 shares owned by Defendant A in order from around 200 to around 25, 2012.

Accordingly, Defendant C used 10 114 Korean Investment Securities Account, including AY, which is a customer of AH operated by Defendant C, and purchased AA shares sold by Defendant A and B as follows.

(b) Market price manipulation by a conspiracy of trading;

No one shall trade listed securities in collusion with another person to sell and sell the securities at the same price or at an agreed value as his/her own purchase and sale with intent to mislead another person into booming the trading of the listed securities or cause another person to make a wrong judgment.

According to the above public offering, around 13:34:59 on September 24, 2012, around 13:34:59, the 30,00 shares of AA were sold at KRW 1,775 per share from the one investment account (Account Number B) in the name of B, and around 13:35:03 on September 24, 201, Defendant E used the Korean Investment Securities Account (Account Number BC) in the name-free point in Switzerland-si located at KRW 13:35:0 on September 24, 201, Defendant E used the 310 shares of AB to submit purchase orders to the 310 shares of B, and the 13:35:0 shares of AA from September 24, 2012 to KRW 1,775 per share, and Defendant E-21 to 25:315 shares from September 24, 2012 to KRW 27:315 shares from 27:31.21.25 shares

As a result, the Defendants conspired to trade 331 times in total (415,580 shares).

No one shall mislead any person to believe that the trading of listed securities is booming of active trading or trade such securities with an intention to attract another person to trade such listed securities, or trade such securities with a change in the market price.

1) High-priced purchase orders

Defendant E used the Korea Investment Securities Account (Account Number BE) in the Turkey branch located in Chuncheon on September 24, 2012, at around 13:31:29, Defendant E submitted a market price for purchase of 260 shares of AA and concluded 1,795 won higher than that of the immediately preceding 1,770 shares, as stated in the attached Table 1-2 Nos. 1-1 through 86, Defendant E from September 24, 2012 to September 25, 2012, with the total number of 86 times (4,960 shares) as stated in the attached Table 1-2-1 to 86, and Defendant C submitted an order for purchase of 1,797 to 1,795 shares of AA and 260 shares of the immediately preceding 260 shares.

As a result, the Defendants conspired to place an expensive purchase order of 90 times (50,460 shares).

(ii)the volume reduction order;

On September 24, 2012, around 13:41:54, Defendant E submitted a purchase order to the market price for the shares AA 200 shares in the name of 1,795 won immediately before the use of the Korea Investment Securities Account (Account Number BG) in the name of the above Korea Investment Securities Chuncheon branch, and concluded 200 shares out of the remaining shares from September 24, 2012 to September 25, 2012, Defendant E submitted a purchase order to the market price for the shares AA 200 shares at the market price of the other 1,795 won, the other 1,795 won, the quantity of 1,795 won, and the other 1,160 shares as described in the attached Table 1-3 No. 80,530 shares, and Defendant E submitted the purchase order to the market price of 200 shares.

As a result, the Defendants conspired to place a total of 217 weeks (81,530 shares) order.

D. Sub-determination

The Defendants conspired to make 638 times (547,570 shares) price manipulation orders, such as the collusion, for the purpose of making a false judgment or inducing other persons to make a false judgment, the Defendants made a total of 638 times (547,570 shares).

3. The second market price manipulation (the joint offenses committed by Defendants A, B, and F);

(a) The background and conspiracy of crimes;

Since March 2013, Defendant A and B had continued to decline, Defendant A and B had a mind to prevent the sale of the management share that was entrusted to the bond company as a collateral for the opposing trade. Defendant B had used the accounts in the name of BH and B I managed by oneself, and requested Defendant F to purchase AA shares to the representative director of the AF, who is a director, while purchasing AA shares by directly using the accounts in the name of BH and B I. Defendant F had the intent to purchase AA shares by accepting the request. Defendant F had the intention to use the accounts in the name of AF and BJ.

No one shall sell and purchase listed securities in collusion with another person to sell and sell the securities with the same price or agreed value as he/she sells and purchases them at the same time as he/she sells and purchases them, or trade them with another person without an intention to transfer his/her right, with an intention to cause another person to make a false judgment.

On July 17, 2013, at around 14:26:03, Defendant F submitted an order to sell at KRW 1,430 per share 30,00 of the AA’s shares by means of a securities account (Account Number BL) in the name of the Seoul Gangnam-gu Seoul and 6th AF office, and at around 14:26:11 on the same day, Defendant F conspired to submit an order to purchase KRW 3,000 of the AA’s shares at KRW 14:26:11 on the same day by using a securities account (Account Number BM) in the name of the BJ that he/she manages at the same office. From around that time to July 30, 2013, Defendant F conspired to enter into an order to purchase KRW 1,430 per share in the AA’s shares at KRW 14:26:9 on July 30, 2013.

As a result, the Defendants conspired to trade 9 times in total (26,027).

1) High-priced purchase orders

around 12:21:05 on March 29, 2013, Defendant B submitted an order of high-priced purchase of KRW 1,500 (Account Number BN) immediately before the use of the Korea Investment Securities Account under the name of BF office at the above AF office, and KRW 25 won from the market situation where the other sale Nos. 1,510 causes the immediately preceding 1,510 cause, and KRW 1,525,500 higher than the other preferential sale price, and submitted an order of high-priced purchase of KRW 1,515 won, KRW 828,515 won, KRW 1,515 won, KRW 976, KRW 320, KRW 1,520, KRW 693, KRW 4,525 won, KRW 3,000, KRW 1,5250, KRW 2508, KRW 15,2515, KRW 251,2515, etc., and Defendant B and up to 1, 2501, 25.

As a result, the Defendants conspired to make a total of 236 shares (366,842 shares) high-priced purchase orders.

(ii)the volume reduction order;

At around 12:27:13 on March 29, 2013, Defendant B submitted an order for purchase of AA’s shares 9,373 shares at the market situation where 1,535 won or 1,535 won or 1,373 shares were sold, and Defendant B entered a total of 20 times (50,400 shares) and Defendant F entered a total of 142 times (163,233 shares) as indicated in the attached Table 2-3 Nos. 1 through 20 as stated in the attached Table 2-2 of the list of crimes (50,40 shares) and the same Table No. 41 through 182.

As a result, the Defendants conspired to place a total of 162 weeks (213,632 shares).

3) Paper Piping orders

At around 14:53:46 on April 8, 2013, Defendant B submitted an order for purchase of KRW 1,470 at KRW 1,470 at the price higher than the expected conclusion price, and KRW 1,470 at the price higher than the expected conclusion price, and Defendant B submitted an order for purchase of KRW 1,470 from around that time to July 18, 2013, in total two times (6,000) as indicated in the attached Table 2-4 No. 1,2, and 19 through 19, as stated in the attached Table 19 through 19.

Accordingly, in collusion with the Defendants, 13 plenary session (53,215 note) was ordered.

D. Sub-determination

The Defendants conspired to make 420 times (659,716 shares) such as the collusion with the intent to make a false judgment or to attract other persons to make a false judgment, the Defendants ordered 420 times (659,716 shares) of the price manipulation.

4. Unfair trading in relation to the raising of funds (joint offenses committed by the defendants A and B);

No one shall intend to obtain money or any interest in property by using an unfair means, scheme, or trick in connection with the trading (including public offering, private placement, and public sale in cases of securities) or any other transaction of financial investment instruments, or by using a document containing a false description or representation of a material fact, or an omission of a description or representation of a material fact necessary for preventing others from being misled, or any other description or representation.

A. False disclosure concerning the mining right and advance payment of this case

Defendant A, from December 2008, was given a donation of KRW 10 billion from AO to the effect of delisting the contingent debt, was practically involved in management while taking office as the representative director of AA around September 11, 2009. Defendant A, as described in Section A of the above 2. In order to conceal the fact that former management took office as the representative director of AA around September 11, 2009, he was aware that the advance payment of KRW 10 billion was made by pretending the sale of the instant mining right 2/3 shares to conceal the fact that the former management paid the down payment and the intermediate payment of KRW 10 billion as the current assets of AA, and that Defendant A was aware of the aforementioned shares in the advance payment of KRW 10 billion from around 130 billion to June 30, 2009, and Defendant A and Defendant A were aware of the foregoing shares in the advance payment of KRW 10 billion as the assets of A10 billion.

B. Filing a false claim for return of advance payment

On March 2010, Defendant A and B planned to file a false claim for refund against the above advance payment of KRW 10 billion against AO in order to pretend that the above advance payment and/or 1/3 shares of the mining right of this case exist as the assets of AA in the process of receiving external audit from the Preliminary Accounting Corporation.

Accordingly, around March 22, 2010, prior to the date of the preparation of the audit report by the above Jung-day Accounting Corporation, the Defendants filed a lawsuit claiming the above advance payment of KRW 10 billion on the grounds of the nonperformance of AO on the instant mining right sales contract. On September 9, 201, the Defendants lost the said lawsuit, and filed an appeal around October 25, 201.

C. Sub-decision

Ultimately, the Defendants conspired to use the aforementioned unlawful means, plans, or tricks, or using documents or indications containing false information with regard to material facts, and Defendant A raised KRW 90,00,000 by issuing a publicly offered bearer convertible bonds on October 23, 2009, and thereafter, from around that time to April 9, 2012, the Defendants raised an external fund of KRW 5,958,006,750 in total by issuing convertible bonds or stocks on a total of six occasions as indicated in the attached Table (3) from around January 31, 201 to April 9, 2012, each of them acquired financial gains by raising an external fund of KRW 3,978,000,750 in total four times from around April 31, 201 to around April 9, 2012.

5. Violation of reporting on the status of possession in bulk;

A person who comes to hold stocks, etc. of a stock-listed corporation (referring to cases where the total number of stocks, etc. held by the person himself/herself and his/her specially related persons is at least 5/100 of the total number of such stocks, etc.) and a person who files a report thereon shall, if the total number of the stocks, etc. held by him/her has changed by at least 1/100 of the total number of the stocks, etc., report the changes to the Financial Services Commission and the Exchange in accordance with the methods prescribed by statutes, within five days from the date such changes are made. In addition, a person who files a report shall report to the Financial Services Commission and the Exchange within five days from the date the changes are made, even if there is a change in the purpose of holding the stocks, etc. or under a trust security contract for

Defendant A, on March 18, 2013, offered 80,000 shares equivalent to 3.3% of the total issued shares of AA, which were held by Defendant A, as collateral, to BP and G and borrowed KRW 1 billion. Thus, Defendant A did not report the fact to the Financial Services Commission and the Exchange until March 25, 2013. In addition, Defendant A violated the duty to report on the changes in possession on five occasions, such as the list of crimes, from around that time to June 24, 2013.

Summary of Evidence

[Judgment of the court below]

1. The defendant D's legal statement, each of the defendant A, B, C, and E's legal statement

1. Protocol of each examination of the witness in relation to D, Q, BR, BS, and AV;

1. Each of the suspect interrogation records as to the Defendants

1. Each statement of the BR, Q andS;

1. Details of sales of 1,334,458 note AT 1,34,458 ( September 24, 2012; - September 27, 2012); details of sales of shares in E, AAA, details of sales of shares in D; details of transactions in D’s bank accounts; details of transactions in D’s bank accounts; results of tracking of entry and exit resources to E, E, BT, D, BU, and AJ; relevant details of transactions in each account in the name of AA, BT, D, BU; details of transactions in the KOSDAQ market;

1. Investigation report (A and D, E, A, and B on mutual currencies), investigation report (D, E, 160 million won number, and securities account report used by E), investigation report (report on account tracking results for C, E, 240 million won number), investigation report (report on account tracking results for C, E, 200 million won number), investigation report [report on the current status of stock holding and trading order of the Korean securities management account in the Bank of Korea in the Bank of Bank AH, attached to the report on investigation (report on account tracking results for money received from A through C, D), investigation report (report on account tracking results for money received from A), investigation report (attached to the account tracking results for an AI citizen bank account and accounting details), investigation report [specific for Korea Securities (Skcheon branch account) account that purchased A stocks of the Bank of Korea), investigation report (report on appointment agreement concluded between C-Investment Securities Co., Ltd.);

【Fact 3 at the Time of Sales】

1. Each legal statement of the defendant A, B, and F;

1. Some statements made by the defendant A in the suspect interrogation protocol (six times)

1. A written statement prepared BV and BH;

1. Details of orders by the market price of the "AF";

1. Investigation report (report related to the orders issued by the mayor in the order to make a market manipulation, investigation report (report on BI currency of each B military account holder), investigation report (Attachment to BH statement in the name of each B military account holder);

【Fact 4 at the Time of Sales】

1. Each legal statement of the defendant A and B

1. Protocol of examination of the witness in relation to AO, BW, and X;

1. A copy of the written statement made to B or AO, a copy of the statement made to Defendant A (as of February 10, 2012), a copy of the AO statement made to Defendant A (as of February 14, 2012), a protocol of suspect examination of AM (as of September 16, 201).

1. A copy of each statement prepared in BY and AO;

1. Partial certificates of each registered matter, advance payment portion of the AA audit report in 2008, agreement on acquisition by transfer of shares and right of management among N and AO (as of July 21, 2008), amendment of AA, and calculation details of capital potential rate after amendment, inquiries into the case search records of advance payment return lawsuits on June 17, 2008, public disclosure data, etc. related to subscription to new shares on June 17, 2008, changes in capital during the business report in 2012, details of financing by the date AA for the AA for the purpose of raising funds, data on public announcement of DAR related to financing by State decision (Evidence No. 16, 18).

1. A investigation report (a), investigation report (aG, part of the registered matters of BZ), public disclosure data related to KRW 10 billion in advance (a0 billion attachment to public disclosure data related to advance), investigation report (a) (a) investigation report (in the case of prosecution prosecution prosecution prosecution prosecution prosecution prosecution prosecution prosecution prosecution prosecution prosecution prosecution prosecution prosecution prosecution prosecution prosecution No. 2012 Form No. 8886), copy of investigation report (in addition, a copy of the statement attached to the AO's mining right and a copy of the check related to KRW 10 billion paid to AO from relevant AB), investigation report (in advance, related to mining right accounting standards), investigation report (in the case of violation of mining right accounting standards, and delisting requirements due to capital potential after revision), investigation report (in the case of pre-payment litigation and accompanying materials), investigation report (in the case of pre-payment litigation and accompanying materials), investigation report (in the case of submission of documents attached to the list of accounts in the name of the AB bank);

【Fact 5 at the Time of Sales】

1. Defendant A’s legal statement

1. A report on the status of stocks, etc. held in bulk (before a crime is committed on February 17, 2009), matters concerning shareholders in the business report of 2012, and an agreement on each stock security loan;

1. An investigation report (a report on the confirmation of the suspicion of violation of duty to report in possession of stocks) (a report (a report on the confirmation of a violation of duty to report in bulk) entered into by a BP and A;

【Prior Records at the Time of Sales】

1. In cases of investigation reports, and reports on criminal records and annexed judgments, and current status of personal identification and confinement;

Application of Statutes

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

A. Defendant A: Articles 443(1)4, 176(1)1 and 2, 443(1)5, and 176(1)5, and 176(2)1 of the former Financial Investment Services and Capital Markets Act (amended by Act No. 11845, May 28, 2013; hereinafter “former Financial Investment Services and Capital Markets Act”); Articles 30 (1)4, 176(1)4, 176(1)3, and 47 of the Criminal Act; Articles 443(1)5, and 176(2)1, and 47 of the former Financial Investment Services and Capital Markets Act (amended by Act No. 11845, May 28, 2013; hereinafter “former Financial Investment Services and Capital Markets Act”); Articles 176(1)1 and 176(1)5, 43(1), and 176(2)1, and 47 of the former Criminal Act (amended by comprehensively stipulating imprisonment)

B. Defendant B: Articles 443(1)4, 176(1)1 and 2, 443(1)5, and 176(2)1 of the former Capital Markets Act; Articles 30 (a) of the Criminal Act; Articles 443(1)4, 176(1)1, 443(1)2, and 176(1)3, 443(1)5, and 176(2)1 of the former Capital Markets Act; Articles 30 (a) of the Criminal Act; Articles 443(2)2, 443(1)8, and 178(1)1 and 2 of the former Capital Markets Act; Article 30 (a) of the Criminal Act; Article 443(1)2, and Article 178(2)2 of the former Capital Markets Act;

C. Defendant C and E: Articles 443(1)4, 176(1)1 and 2, 443(1)5, and 176(2)1 of the former Financial Investment Services and Capital Markets Act; Article 30 of the Criminal Act

D. Defendant D: Articles 443(1)4, 176(1)1 and 2, 443(1)5, and 176(2)1 of the former Capital Markets Act; Article 30 of the Criminal Act (amended by Act No. 443(1)2, 443(1)5, and 176(2)1

(e) Defendant F: Article 443(1)4, Article 176(1)1, 2, and 3, Article 443(1)5, and Article 176(2)1 of the former Capital Markets Act, Article 30 of the Criminal Act

1. Aggravation for repeated crimes;

Defendant E: Article 35 of the Criminal Act

1. Aggravation for concurrent crimes;

Defendant A and B: the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (Aggravation of concurrent crimes with punishment prescribed in the violation of the Financial Investment Services and Capital Markets Act due to the heavy fraudulent transactions)

1. Discretionary mitigation;

Defendant A and B: Articles 53 and 55(1)3 of the Criminal Act

1. Detention in a workhouse;

Defendant D: Articles 70(1) and 69(2) of the Criminal Act

1. Suspension of execution;

Defendant A, B, C, and F: Article 62(1) of the Criminal Act

Reasons for sentencing

1. The scope of punishment by law;

(a) Defendant A: Imprisonment for 2 years and 6 months to 22 months;

B. Defendant B: Imprisonment with prison labor of one year and six months to twenty-two years and six months;

(d) Defendant D: Fines of KRW 50,000 to KRW 500,000.

(e) Defendant E: Imprisonment of one month to twenty years;

2. Scope of recommendations according to the sentencing criteria;

A. Violation of the Financial Investment Services and Capital Markets Act due to illegal transactions (hereinafter “Capital Markets Act”).

[Determination of Type] Securities Crimes, Offenses infringing on Fairness in the Capital Market (Unlawful Transactions),

- Defendant A: Type 4 (at least five billion won, at least 30 billion won),

Defendant B: Type 3 (at least 400 million won, but less than 5 billion won);

[Special Convict] Where the impact or scale of the act on the actual share price, etc. is small

[Decision of Recommendation] Reduction Area, Defendant A: Imprisonment with prison labor for three years to six years

Defendant B: Imprisonment of one year and six months to four years;

B. Violation of Financial Investment Services and Capital Markets Act due to a violation of duty to disclose stocks held in bulk

[Determination of Type] Securities Crimes, Violations of Transparency in the Capital Market, Type 1

【Special Convicted Person】

[Decision of Recommendation] Basic Area, 4 months to 1 year

(d) Scope of recommendations according to the standards for handling multiple crimes;

The crime of violation of the Capital Markets Act due to each market price manipulation in this case cannot be calculated on the basis of the amount of profit, and thus, the two standards cannot be applied. The maximum amount of concurrent crimes under the former part of Article 37 of the Criminal Act between the crimes on which the sentencing guidelines are set and the crimes for which the sentencing guidelines are not set is not observed, and the lower limit is based on the lower limit of

1) Defendant A: Imprisonment for three years to twenty-two years;

2) Defendant B: Imprisonment for 1 year and 6 months to 22 months;

3) Defendant C, E, and F: No recommendation type according to the sentencing guidelines is available.

3. Determination of sentence;

In full view of all the sentencing factors shown in the arguments in the instant case, including the above sentencing guidelines and the following circumstances, the Defendants shall be sentenced to the same sentence as the orders.

It is necessary to strictly punish unfair practices such as manipulation of market prices of ○ stocks not only cause broad damages to many and unspecified general investors, but also undermine sound investment awareness and undermine the development of the capital market.

However, in the case of the instant crime, it appears that the effect of the market price manipulation on the share price or the loss of shareholders is not serious. Specifically, the first market price manipulation is not for the purpose of preventing the market price decline and selling large shareholders' quantity by preventing the market price decline rather than for the purpose of artificial increase through repeated sale and purchase of shares. It is difficult to deem that there was a major purpose to seriously disrupt market order. The violation of the Capital Markets Act due to fraudulent illegal transactions is likely to have already been made by the former management before Defendant A acquires the substantial management right, and it is reasonable to take into account the motive.

The defendant A, as a major shareholder and representative director of AA, led each of the crimes of this case, and the benefit that he could have been able to obtain from the crimes of this case seems to be the largest.

Defendant B’s respective representative director of AA, who was involved in the instant crime, may not be deemed to have led to the instant crime, and the circumstances leading to the instant crime are not revealed.

Although Defendant C participated in the first market price manipulation, it seems that Defendant C had a long-term purpose of holding shares in consideration of the growth potential of AA in addition to the purpose of market price manipulation.

Defendant D merely performed the role of introducing Defendant C and Defendant E in the first market price manipulation process, and did not participate in the sale and purchase itself, and did not comply with the degree of participation in the instant crime.

Defendant E was sentenced to 1 year and 10 months for a violation of a separate Financial Investment Services and Capital Markets Act, which constitutes concurrent crimes with this case, and is currently pending in the final appeal.

○ Criminal records, family relations, personality and conduct etc. of the Defendants

Judgment on the Defendants and their defense counsel’s assertion

1. Violation of the Capital Markets Act due to market price manipulation

A. In order to establish a crime of violation of Article 176(1) of the Financial Investment Services and Capital Markets Act, such as related legal principles, ‘the purpose of causing a misunderstanding that the 'trade' is a subjective element in addition to the facts of the conspiracy, trading, or the 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the '' is' to mislead the 'the 'the 'the 'the 'the 'the ' is' or ‘the ' is' to mislead the 'the 'the 'the 'the ' is'. This objective is not a question whether the 'the 'the 'the 'the 'the '' is' or the 'the 'the 'the 'the 'the 'the 'the ' is', but it is sufficient that the 'the 'the 'the 's ' is not the 'the '

In addition, "the purpose of inducing a trade" under Article 176 (2) of the Financial Investment Services and Capital Markets Act is to attract investors to trade securities by misunderstanding that the market price was formed by the principle of natural demand and supply in the securities market, notwithstanding the purpose of causing a fluctuation in the market price by artificial manipulation. "the trading that misleads investors as to the possibility that the trading price is being formed by the principle of natural demand and supply in the securities market" under subparagraph 1 refers to the trading that is likely to cause an artificial change in the market price and trading volume to be formed in the free competition market due to the supply and demand of the original market. It is sufficient that there is a possibility that the market price may actually be changed due to such an act if a series of acts were conducted, and there is a possibility that the market price will be changed by the overall act (see, e.g., Supreme Court Decisions 2003Do4320, May 11, 2006; 29Do2628, Jun. 28, 2001).

Furthermore, in determining the ‘public offering of market price manipulation', it is reasonable to view that the participants in the specific market price manipulation are liable for the other participants' acts, barring special circumstances, since the trading of the participants in the market price manipulation does not act individually and independently, regardless of their trade names, but causes artificial change in the market price by causing a mutual increase in order or overlapping.

On the other hand, the form of a market price manipulation order is generalized in the trading of listed securities by means of the most trade, collusion, high-priced buying and selling orders, market price and closing and selling orders, so it is not uniform, but may vary in the specific method of market price manipulation and market price orders according to individual market price manipulation cases. In determining whether it constitutes a market price manipulation order, it shall not be determined by individual orders, but shall be determined in light of the purpose of prohibiting such a purchase and sale, comprehensively taking into account the following: (i) the appearance of other orders before and after the market; (ii) the number and frequency of stock trading pattern of suspected persons; and (iii) the volume and number of stock transactions; and (iv) the same time as defined in Article 176(1)1 and 2 of the Financial Investment Services and Capital Markets Act, even if it is not always simultaneously, if both parties are likely to come into existence in response to the market price in the trading market; (iii) the price at the same time constitutes a price within the scope where a trade order can be established, and there is no possibility that there exists any possibility that there exists any difference in the actual quantity of purchase and sale order.

B. The first market price manipulation (Defendant A, B, C, D, and E)

In light of the above legal principles, evidence supporting this part of the criminal facts and circumstances acknowledged therefrom are generally as follows.

1) The fact that Defendant AT shares of approximately 10,100 through 1080,00 shares of approximately A AT held by Defendant A had been sold during this mold from September 24 to 25, 2012 without using a block (block deal and overtime trade) method, and Defendant C and E have made a successive agreement among the Defendants on the purchase of them. Based on these intentions, Defendant B, around September 23, 2012, her flocked to the effect that Defendant C would have prepared to sell her shares from September 24, 2012, and Defendant C would have prepared to sell her shares from September 24, 2012, and Defendant C would have prepared to purchase her shares from September 24, 2012, 'the defect that Defendant D would have prepared to prepare her shares.'

2) Although there was no agreement among the Defendants on specific timing of sale, volume of sale, and purchase price, between September 24 to 25, 2012, the Defendants sold 104-1080,000 shares on the side of the Defendant A, Defendant C sold approximately KRW 400,00 shares, and Defendant E purchased approximately approximately KRW 600,00 shares in a natural manner. Since there were many items in which AA shares are not traded, it was a situation in which the volume of sale can be recognized and purchased if the volume of sale remains as large shareholders, even if no contact is made each individual sale and purchase.

On the other hand, in the process of purchasing shares according to such agreement, the high-priced purchase orders, market prices, and quantity reduction orders are naturally expected or naturally accompanied, and thus, separate agreement on such order method is not required.

3) At the time, AA shares were traded in and out of 2-80,000 shares per day, and where approximately one million shares of the shares in the name of AT are held in the market at one time, the said shares cannot be sold in a lump sum, and thus, the price of the shares cannot be lowered. Therefore, in order to sell shares in a large volume without lowering the share price, it is essential to seek advance compensation from the other party who will buy the shares.

4) Defendant C and E purchased 415,580 shares in total over 331 times as indicated in the facts of the crime as indicated in subparagraph 2-b.(c) of the same paragraph, either 50,460 shares in total through 90 high-priced purchase orders, and 81,530 shares in total through 217 low-priced purchase orders, and 547,570 shares in total. This constitutes approximately 33% of total trading volume 1,656,905 shares at the same time, and is close to the total trading volume 55,832 shares on September 21, 2012, which is the immediately preceding trading date.

5) Defendant E purchased the above shares using 114 accounts of 91 customers managed by AH, and Defendant C continued to divide the order amount into the accounts of the customers managed by Defendant C into small amount and continuously ordered purchase order. In such a situation, it is difficult to view that general investors are aware that the trade of AA shares between individual investors constitutes a de facto situation and that there is a growing possibility of participating in the trade.

In fact, the trading volume of AT shares out of the total trading volume of 981,655 shares on September 24, 2012 is 590,550 shares, and the trading volume of 391,105 shares (i.e., total trading volume 981,655 shares - trading volume 590,550 shares) increased considerably compared to the trading volume of 55,832 shares on September 21, 2012, which is the immediately preceding trading date. There is no reason why the trading volume of 391,105 shares (i.e., total trading volume 981,655 shares - trading volume 590,50 shares) other than the shares trading by the Defendants.

6) On September 27, 2012, immediately after the completion of mass sale, Defendant A paid a total of KRW 240 million to Defendant C, D, and E.

As to the character of the above money, the remaining Defendants except Defendant D argued that the payment for preventing the price decline and purchasing shares in the name of AT is not a consideration for preventing them in large volume, but a consulting consideration for attracting investment in AA, promoting enterprises, and listing at the English market. However, this assertion is not concluded between AA and AH, but a consulting contract has been submitted to AA for modifying the name of the business in the proposal containing the basic contents on the English market round listing, and submitting some additional proposals to AA for modifying the name of the business in the proposal containing the basic contents on the English market round listing, and the specific contents have not been carried out thereafter,

C. The Defendants’ bid relationship on the second market price manipulation (Defendant A, B, and F) and the primary evidence and circumstances supporting the Defendants B and F’s market price manipulation are generally as follows.

1) 피고인 A은 수사기관에서 '경영자 입장에서는 주가가 하락할 경우 회사 이미지가 추락되고 주가관리를 하지 않으면 소액주주들이 계속 회사에 전화하여 항의를 하기 때문에 주가를 관리할 필요성이 있었다. 그래서 동생인 AD에게 이야기를 하여 AD가 자신이 아는 사람들을 통해 AA 주식을 샀다. B도 대표이사이고 회사 채무에 대해 입보를 하였기 때문에 주변의 아는 사람들을 동원하여 최대한 AA 주가가 떨어지지 않도록 주식을 사도록 하였다'라거나, 'B은 AF이나 주변의 아는 사람들을 통해서 AA 주식을 샀다가 팔았다고 하였다. 왜 팔았냐고 하니 AF에 3억 원이란 돈이 일시적인 돈이라 나름대로 주가 방어를 하다가 주식을 곧바로 팔았다고 하였다'라고 진술한 바 있다.

2) Around April 2013, Defendant F stated at an investigative agency that, if the price of AA shares was so much higher and lower than that of B’s shares, Defendant F made a statement to the effect that, if there were funds to the company, he would purchase AA shares and would be favorable to him, and that it would be a situation in which B’s request cannot be rejected, making it a fraudulent act.

3) Defendant B traded shares using a computer installed in AF office, other than AA office, which is permanently stationed. This seems to be aimed at hiding the representative director of listed company from trading the shares of the company in his company as a borrowed account.

4) Defendant B used the borrowed name account in the name of BH and BI, and Defendant F purchased AA’s shares in addition to the borrowed name account in the name of BF, but denied the purchase of AA shares in the initial investigation period using the borrowed name account.

5) Defendant B alleged that the shares of the account in the name of BH offered as security to CB on March 29, 2013 when he/she was granted a loan for the part he/she purchased, that the shares of the account in the name of BH were purchased in the market to correct it by the computer error of the said company. However, if the counter-transaction was caused by the negligence of the obligee, it appears that there is no reason for the obligor to promptly secure the collateral through the order of purchase, etc., and Defendant B continued to purchase the shares of BA by using the borrowed account in the name of BI from April 3, 2013 immediately after the purchase.

6) Defendant F continued to purchase only AA shares in the name of the Company by using the funds borrowed under the name of the Company, even though there was no previous stock transaction doing so, and traded AA shares in the name of BJ by lending amounting to KRW 170 million fromCC. Moreover, unlike the assertion that Defendant F purchased shares at a short time at the market price due to the lack of time for stock transaction due to the company’s business, the trading behavior leading to repeated orders by dividing the purchase volume by small amount of the purchase order at a short interval.

2. The violation of the Capital Markets Act due to fraudulent fraudulent transactions (Defendant A and B).

In light of the following circumstances revealed by the evidence revealed in the judgment below, the circumstance that there is no 10 billion won of the advance return claim appropriated as the assets in the AA financial statements and the obligation to return the 1/3 share of the mining right of this case to AO is a significant impact on the company's company's property and management, or an important matter that may affect the investor's investment judgment, but Defendant A and B knowingly acquired property profits by raising outside funds by raising outside funds.

1) Defendant A acquired management rights for AA from AM, N and AO with knowledge of the fact that a contract for transfer of ownership and management rights for AA and a contract for transfer of ownership for the instant mining rights was concluded. At that time, it was practically impossible for AM and AO to transfer AA’s shares and management rights. Accordingly, the 1/3 shares of the mining rights included in AA’s assets should be returned to AO in accordance with the instant mining right sales contract, which is in fact a quid pro quo relationship with the transfer of ownership and management rights.

In this regard, around January 20, 2009, AM confirmed that it was difficult for AO to pay the balance of the mining right sales contract of this case to the end of January 20, 2009, and that it was returned to AO by June 30, 2009 through the procedures for termination of the mining right sales contract. AA prepared a statement of performance that "A shall recognize negligence and compensate A0 for penalty of one billion won by June 30, 2009." On the other hand, Defendant A prepared an additional agreement with AO to extend the remainder of the payment date of the mining right sales contract of this case to June 30, 2010.

2) Defendant A acquired, as it was, 16,787,614 shares of AA 16,614 shares issued on June 18, 2008 with the third party allotment issued on June 18, 2008, which were 16,787,614 shares of AA 16,614 shares, which were issued on June 18, 2008, and later acquired 15:19,16 shares of A 1,614 shares (which were 1,16 shares through capital reduction without compensation on December 11, 2008).

Thus, it is clear that Defendant A knew that there was no normal payment of the stock price at the time of the issuance of new shares as of June 18, 2008, and it was sufficiently known that AA had no financial ability to pay advance payment of KRW 10 billion around July 29, 2008, which is the date of the conclusion of the mining right contract of this case, in the process of repaying N's contingent obligation from the end of the end of the time of the time of the issuance of new shares to January 2009.

3) On June 17, 2008, Defendant A made a statement to the effect that he was investigated as a witness in the course of the investigation into India on June 17, 2008, that he was aware of the fact that he was aware of the fact that he was paid the fictitious payment of KRW 8.3 billion in capital at the time of AAA’s capital increase with capital increase, and that the funds were temporarily borrowed from the bond company around spring of spring of 2009, and that he was aware of the fact that he was paid the fictitious payment in the due diligence around September 2009 and that he was aware of the fact that he was selling the mining right at the intention to escape delisting in 208.

4) On August 2009, AO directly found Defendant A and requested the return of the mining right.

In light of the empirical rule, if the management right of AA has already been made consistent and it is impossible for AAO to acquire shares and management rights more than that of AO, it is reasonable to view that AO has requested the return of the 11.3 billion won of the market value of the mining right of this case as a donation.

5) Defendant A paid AO KRW 30 million on December 30, 2008, KRW 5 million on January 22, 2009, KRW 30 million on February 27, 2009, KRW 1 million on April 30, 2009, KRW 5 million on August 14, 2009, KRW 6 million on August 20, 2009, KRW 12 million on August 14, 2009, and KRW 5 million on August 14, 2009, KRW 12 million on an investigative agency to lend AO’s funds on the high seas, taking into account that Defendant A and AO have no personal relationship with them, or that there was no personal relationship with them on the sales of the instant portion of the instant mining right, Defendant A and AO have stated that they were to lend the instant amount of KRW 100,000 on August 14, 200.

6) Defendant B stated that, upon receiving the de facto review of delisting in 2010 at an investigative agency, he was aware that the AAA’s capital increase was made in the highest amount of KRW 8.4 billion on June 18, 2008. Defendant A also stated that “B was responsible for the portion of AAA’s finance since October 2009, and that it became responsible for each of its representative directors at a regular shareholders’ meeting on March 2010 and March 201.”

Defendant B, as the representative director of the AA, primarily responsible for public disclosure, funds, and tax affairs, which are the management affairs of the listed company. In the event that the advance payment of KRW 10 billion or the allowance for bad debts for mining rights is established, Defendant A did not conceal the above circumstances to Defendant B in a situation subject to management or delisting.

7) In light of the fact that Defendant A stated in the investigative agency that “the filing of a lawsuit to return advance payment was Defendant B’s idea,” and that Defendant A written agreement was concluded on March 4, 2010 that delayed the payment date of the remainder of the mining right sales contract of this case 11.3 billion won on March 4, 2010, prior to the filing of the said lawsuit, Defendant B is deemed to have filed a lawsuit to return advance payment even with the knowledge of the foregoing circumstances.

8) On the other hand, AO stated in the prosecution that "the defendant A and the defendant B want to find the case in order to substitute the accounts receivable simply with the accounts receivable as the accounts receivable, because they resisted why the lawsuit for return of advance payment was made to the defendant A after the lawsuit for return of advance payment was instituted," and that "the defendant A and the defendant B want to substitute the accounts accounts simply with the accounts receivable."

The acquittal portion

1. The Defendants A, B, C, D, and E’s violation of the Capital Markets Act due to market price manipulation on September 26, 2012 through September 27, 2012

A. Summary of the facts charged

Pursuant to the facts stated in Paragraph A of Article 2 of the Criminal Act, the Defendants recruited market price manipulation from September 24, 2012 to September 25, 2012; accordingly, the Defendants offered 2-B price manipulation from September 24 to 25, 2012, as well as 332 to 374 from September 26, 2012, Defendant C sold a total of 43 times (147,038 shares) (147,038 shares) as stated in Attached Table 1-1, 332 through 374; Defendant C sold a total of 4 times (6,00 shares) purchase orders (6,00 shares) as stated in Attached Table 1-2, 91 to 94, as stated in Attached Table 1-3, 218 to 221, a total of 4 times (11,500 shares).

B. Determination

In full view of the following circumstances acknowledged by the record of the instant case, the evidence submitted by the prosecutor alone cannot be deemed as part of the market price manipulation conducted through the Defendants’ solicitation, and there is no other evidence to acknowledge otherwise.

1) As indicated in the facts of the crime in the judgment, Defendant A, C, D, and E agreed to sell and purchase shares of approximately KRW 1040,000 to KRW 1080,000 from September 24, 2012 to September 25, 2012 in order to raise KRW 2 billion to be donated to A by the original Defendant A, as described in paragraph (2) of the same crime in the judgment. In addition, after the end of the Chapter on September 25, 2012, Defendant A’s receipt of shares was publicly announced, and such public announcement was actually made.

2) On September 26, 2012, Defendant A called “A” to sell and purchase shares remaining after phone calling to Defendant C separately, and Defendant C purchased additional AA shares independently without notifying Defendant D or Defendant E (this part may be recognized as a separate co-principal of Defendant A and C, but it is not possible to find Defendant C guilty without changing the indictment under the principle of non-defluent interest).

3) Defendant E did not purchase AA’s shares after September 26, 2012. Rather, on September 26, 2012, Defendant E sold KRW 151,210 of the AA’s shares to KRW 280,258,005, from that time until January 10, 2013.

C. Conclusion

Therefore, since the facts charged in this part of the facts charged constitute a case without proof of a crime, it should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, inasmuch as it is found guilty of the crime No. 24-25, Sept. 24, 2012, and the violation of the Financial Investment Services and Capital Markets Act due to market price manipulation,

2. The part of the profits accrued from the violation of the Capital Markets Act due to the Defendants A, B, C, D, and E market price manipulation (the first market price manipulation)

A. Summary of the facts charged

The Defendants conspired to engage in market price manipulation as stated in the facts constituting a crime(2) and thereby suffered unfair profits of 567,132,855 won in total.

The purpose of prosecution by the prosecutor concerning calculation of unjust enrichment is as follows.

- The acquisition of 33,494 shares of new shares that AT had been subject to the first market price manipulation on July 2010 (the acquisition price per share 9,625 won) at KRW 3,209,879,850 (the acquisition price per share)

- A on December 31, 2010, implementing an increase without compensation by AA to allocate six new shares per common share on December 13, 2010, with the date of allocation as of December 13, 2010, the number of shares owned by AT shall be 2,334,458 shares, and the acquisition price per share shall be 1,375 won per share, 9,625 won.

- Under the premise that the first price manipulation period was from September 24 to 27, 2012, 567,132,855 won calculated by subtracting the acquisition price of KRW 1,834,879,750 (i.e., the acquisition price of KRW 1,375 won X 1,334,458), from the total sales price of KRW 2,402,01,605, which was sold during that period, from the total of KRW 1,334,458, from the acquisition price of KRW 1,375, X 1,334,458)

B. Determination

The term “profit accrued from a violation” under the proviso of Article 443(1) and (2) of the Financial Investment Services and Capital Markets Act means the profit accrued from a transaction related to the violation, which is recognized as having causation and causal relationship with the risk incurred from the violation. This can be calculated by calculating the difference from the gross income generated from a transaction related to the violation by the method of calculating the difference between the gross income generated from the violation and the gross income generated from the transaction related to the violation. However, in a specific case where there is a share price increase due to the normal share price fluctuation factor in the stock market or a change in the stock price caused by a third party unrelated to the violator, if there are circumstances to deem the calculation by the said method unreasonable, only the profit that is recognized as having causal relationship should be separately calculated (see, e.g., Supreme Court Decisions 2009Do675, Apr. 9, 2009; 201Do15056, Jul. 11, 2013).

In this case, in light of the following circumstances, the total amount of the unfair profit recorded in the above facts charged cannot be deemed to have a causal relationship with the risk of the Defendants’ market price manipulation. The evidence submitted by the prosecutor alone cannot be calculated separately from the “the profit accrued from the market price increase due to the market price manipulation” and the “the profit accrued from the market price increase due to the factors unrelated thereto,” and ultimately, it constitutes a case where the profit accrued from the market price manipulation cannot be calculated.

1) The instant case was conducted after the lapse of two years from the date of acquisition of stocks, and the stock price increase from the time of acquisition of stocks to the time of commencement of the stock price manipulation is not the unjust enrichment earned from the time of commencement of the stock price manipulation.

2) The price per share of the said shares increased from KRW 1,375 at the time of acquisition to KRW 1,770 on September 21, 2012, which was immediately preceding market price manipulation. However, if the price as of December 30, 2010, which was close to the point of free capital increase as of December 30, 2010, was already KRW 1,610, the increase up until that time seems to be based on the difference between the acquisition price of shares and the market price or on the increase without compensation.

3) From September 25, 2012, September 24 to September 27, 2019, the market price manipulation period based on the facts charged, the share price was 1,800 won to KRW 1,800 per share, even if there was a new announcement that AA will take over AG after the end of the Chapter 9.25.

C. Conclusion

Thus, this part of the facts charged should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act because it constitutes a case where there is no proof of a crime. However, as long as the court found the defendant guilty of violating the Capital Markets Act due to market price manipulation as stated in paragraph (2) of the facts charged,

3. The receipt of property in breach of trust against Defendant C, D, and E, and the receipt of property in breach of trust against Defendant A and B

A. Summary of the facts charged

1) The point of taking property in breach of trust by Defendant C, D, and E

Defendant E is a person in charge of the business of acquiring, disposing of, or operating financial investment instruments in any other way with consideration of the investor’s property status, investment purpose, etc., upon delegation of all or some of the judgment on investment in financial investment instruments by the investor as to the investment advisory business and discretionary investment business. A person who runs a discretionary investment business shall not receive money, valuables, benefits, etc. in violation of the level of ordinary understanding of the investor or trading partner in the course of operating financial investment instruments by using the discretionary investment instruments. A person who operates a discretionary investment business shall operate financial investment instruments based on objective and reasonable judgment for the investor’s interest and shall not operate the financial investment instruments in order to obtain personal interests.

Nevertheless, Defendant C and E, as indicated in the facts of the crime in the judgment, delivered the timing of selling AA shares owned by the above A to Defendant C and E in order on September 24, 2012 by delivering them to Defendant C and E the timing of selling A shares owned by the above A shares to Defendant C and E after receiving a request for a certain amount of consideration from A and B to sell A shares held by A in the office site of Gangnam-gu Seoul, Seoul. Defendant D introduced them to purchase part of A shares of the customer account managed by A, and Defendant D introduced them to assist them to sell A shares owned by A at the request of Defendant C at the request of Defendant C., and around September 24, 2012. Defendant C and E made the purchase of shares owned by A, as the prior gathered by Defendant C and E.

Accordingly, from September 24, 2012 to September 27, 2012, Defendant C purchased 462,099 shares of AA by using ten 10 shares, such as AX, in total, from September 24, 2012 to September 27, 201, and Defendant E purchased 351,293 shares of AA by using 114 accounts, including AH staff BY, from September 24, 2012 to September 25, 2012.

After that, Defendant C received KRW 240,00,00 from A and B on September 27, 2012, and transferred KRW 169,20,000 to Defendant D on or around September 28, 2012, Defendant C acquired KRW 70,80,000 for the remainder of KRW 169,20,000, which was remitted from Defendant C on or around September 28, 2012. Defendant D acquired KRW 149,00,000 for the remainder of KRW 169,20,000, which was remitted from Defendant C on or around September 28, 2012. Defendant E acquired KRW 149,00,000 for the remainder of KRW 140,000.

As a result, the Defendants conspired to commit an illegal solicitation and received a total of KRW 240,000,000 from others.

2) Evidence of breach of trust by Defendant A and B

Defendant A, B, and C, made an illegal solicitation to assist in the sale of all shares of AA owned by Defendant E and C in preventing the decline in the share price in the Chapter, and granted KRW 240,000,000 to E, C, and D, on September 27, 2012, in return for the offer that E and C, upon such a solicitation, intended to sell all shares of A owned by Defendant A, KRW 1,334,458.

B. Determination

1) To be recognized as a "management of another person's business" for the establishment of a "management of another person's business", the whole or part of the business concerning the management of another person's property and the cooperation in the act of transferring another person's property should be done. In a case where a debt is simply borne by another person, it cannot be viewed as a "management of another person's business" as one of the principal's business (see, e.g., Supreme Court Decision 2007Do2178, Jun. 14, 2007).

2) In light of the following circumstances acknowledged in the instant case, Defendant C and Defendant E cannot be deemed to be in a position to act on behalf of the investors in relation to the management of the investors’ property or to cooperate in the preservation of the property, and thus, they cannot be the subject of the crime of taking property in breach of trust. Accordingly, Defendant D’s crime of taking property in breach of trust and the crime of giving property in breach of trust cannot be established.

A) Defendant C is a contracting director who has entered into a commission contract with a dedicated investment adviser(s) company(s). Under the commission contract, Defendant C agreed that for one of the securities under the commission contract, the act of soliciting the consignment of trading on the securities market or on the securities market for the customer, or the act of offering advice on investment and selling financial instruments for the customer. The payment was agreed that the part of the commission that the customer acquired due to one of the securities transaction is paid from a single investment securities at a certain ratio and the part of the consultation account profit. Accordingly, Defendant C is the main business of recommending the transaction of stocks to the customer, and only the act of buying and selling the securities company’s terminal after the customer decided the purchase and sale of stocks is conducted on behalf of the customer, and there is no direct contract or transactional relationship, such as receiving remuneration from the customer.

Therefore, as stated in the facts charged, Defendant C cannot be deemed to have received all or part of the judgment on investment in financial investment instruments, etc. from an investor, and it is difficult to view that the business of recommending the issues of stock transaction counseling and trading constitutes “the business of another person” that acts as an agent for the customer’s property management or cooperates in the preservation of property.

B) Defendant E is a company running a discretionary investment business as shown in the facts charged. A discretionary investment business entity is obligated to return the investment money stipulated in the agreement to a customer where the discretionary investment contract is terminated or terminated, upon receiving a discretionary investment fee from an investor upon being fully or partially entrusted by the investor, taking into account the investor’s property status, investment purpose, etc., and managing it by acquiring, disposing of, or otherwise managing the financial investment instruments.

In light of the nature of the discretionary investment business, the determination of the investment issue and the volume thereof is the discretionary investment business entity’s own business, and Defendant E, the actual operator or employee of the discretionary investment business entity AH, cannot be deemed to have a position to act on behalf of the investors or to cooperate in the preservation of property.

C. Conclusion

Therefore, this part of the facts charged constitutes a case where there is no proof of a crime, and thus, a judgment of innocence is rendered under the latter part of Article 325 of the Criminal Procedure Act, and a summary of the judgment of innocence is published under Article 58

4. The fact that Defendant A, B, F, and G market price manipulation (the second market price manipulation) violated the Capital Markets Act

① The part concerning Defendant G’s participation in the manipulation of market price manipulation A, B, and F, and ② The part concerning Defendant G and BP’s manipulation

A. Summary of the facts charged

1) The part concerning Defendant G’s participation in the second market price manipulation (joint criminal conduct of A, B, and F) stated in the facts constituting the crime in the judgment

Defendant G conspireds with A, B, F, and BP due to the following circumstances, and accordingly, Defendant G participated in the market price manipulation as stated in B and F’s criminal facts(3).

2) The Defendants’ second market price manipulation part between Defendant G and BP

Defendant G is the representative director of the CD in charge of a real estate development project, and BP is a bond company, who mediates the financing of the company.

From March 2013, Defendant A and B had been mindd to prevent the sale of management shares that have been entrusted to the bond company as collateral due to the continuous decline in the AA share. Defendant A purchased AA shares in an amount equivalent to KRW 500 million to Defendant G and BP, a bond company, and paid the case of KRW 100 million if the bonds were held for three months. Defendant G and BP had the intent to purchase AA shares in the name of father CE account of BP with the intent to obtain BP’s approval of the above proposal after raising the bond fund, and requested the CF to transfer the CE name account, etc. to the bond company who is aware of such intention to collect the shares in an amount equivalent to KRW 500 million for three months.

No one shall buy and sell listed securities with intent to attract anyone to trade such securities, creating a misleading appearance of active trading or changing the market price of such securities.

Nevertheless, Defendant A, B, F, and G in collusion with BP, ordered Defendant G and BP to place a summary of 102 times (283,700 shares) (283,700 shares) as stated in the attached Table 2-3 Nos. 21 through 40 as shown in the attached Table 2-4 of the sight of crime, and ordered Defendant G and BP to place a summary order of 6 times (90,00 shares) in total (44,90 shares) as shown in the attached Table 2-4 Nos. 3 through 8 of the list of crimes.

B. Determination

1) According to the evidence submitted by the prosecutor, it is recognized that the defendant A made a share purchase agreement with the defendant G and BP on April 26, 2013, stating that "the agreed amount shall be at least 500 million won, and the period shall be three months, and that 20% of the purchase transaction amount shall be provided as an occasional security by AA and that 20 billion won shall be promised to purchase all the purchase amount of KRW 500 million (hereinafter referred to as "the share purchase agreement of this case") and that two bank accounts in the name of father CE of BP from April 26, 2013 to May 9, 2013 through two bank accounts in the name of father CE of BP to purchase KRW 414,584,584, was traded at KRW 589,343,615, and that the related statement in the court and investigation agency of the defendant G and BP related to this part of the facts charged are consistent with this part.

2) However, considering the following circumstances acknowledged by the records of this case, it is difficult to view that the facts and evidence alone, which were recognized as above, were the fact of the market price manipulation between Defendant A, B, F, and BP based on the public offering of Defendant G and BP, and the fact of the participation in the secondary market price manipulation (A, B, and F’s joint criminal conduct) as stated in the facts constituting the crime set forth in paragraph (3) of the same Article, have been proven to the extent that there is no reasonable doubt about the participation of Defendant G and BP in the process of pursuing their economic interests with an interest contrary to Defendant A (i).

A) On March 18, 2013, through the introduction of Defendant G, Defendant A entered into a loan agreement of KRW 1 billion as security of KRW 870,000 capital, KRW 1 billion as security around April 16, 2013, KRW 550,000 as security, KRW 1 billion as security around April 24, 2013, KRW 1 billion as security around May 15, 2013, KRW 200,000 as security around May 30, 2013, KRW 4 billion as security, around June 17, 2013, KRW 1 billion as security, KRW 1 billion as security, KRW 50,000,000 as security, KRW 1 billion as security, KRW 60,000,000 as security, and KRW 80,000,000 as security interest of KRW 3220,000,00 as security interest of Defendant GP and the remainder of the loan sales amount immediately.

B) Although Defendant G and BP concluded a share security agreement with Defendant A and sold AA shares at will from the date following the conclusion of the agreement regardless of the agreed collateral ratio, Defendant G and BP made a statement at the beginning of the investigation of the instant case that “the fact of entering into a share security agreement, or the fact of acting in a fluent relationship with Defendant A,” or that “hering to a fluent relationship with Defendant A,” they subsequently reversed

On the contrary, Defendant A or CG, the vice president of the AA, made a relatively consistent statement to the effect that Defendant G and BP strongly demanded the conclusion of the instant share trading agreement at the level of providing additional security due to the decline in the AA share price.

C) On March 18, 2013, the date of the first agreement on stock transaction between Defendant A and BP, the share price fell to KRW 1,410 per share on April 25, 2013, which is the day immediately preceding the date of the instant agreement on stock transaction. Such share price appears to have a significant impact on the continuous sale of the AA shares, which Defendant G and BP received as a loan security. Nevertheless, Defendant G and BP demanded additional security to AA, which is aware of their opposing share transaction. At the time, Defendant G and BP could sufficiently have predicted that if they purchase no longer sell shares, they would have a high risk of decline in the share price if they purchase shares, and even if so, they could sell shares again at KRW 60 million on the side of AA, which was purchased in accordance with the instant agreement on stock transaction, regardless of their decline, and thus, there was no loss or damage in any case.

D) On the other hand, from the perspective of the AA, even if the purchase price under the instant share purchase agreement amounting to approximately KRW 300,000,000 according to the share purchase price, is generally equivalent to the share price of the AA and the purchase price of the AA shares for three months, it is insufficient to affect the share price, and even if the share price increases in a small amount, if the share price is paid in return, there is a high possibility of pecuniary loss, and there is no reason or motive for actively demanding the conclusion of the said agreement.

E) The instant share purchase agreement states that “BP and Defendant G purchases AA shares of KRW 500 million for three months,” and that “AA does not assume responsibility for illegal matters, such as stock manipulation, market disturbance, etc. after the share purchase agreement.”

F) After concluding the instant share purchase agreement, Defendant G and BP realized profits by selling 414,584 shares of the purchased AA from June 4, 2013 to July 3, 2013.

G) Defendant G and BP had a nominal bond company CF purchase shares pursuant to the instant stock transaction agreement using a securities account in the name of CE, and the CF stated in this Court that “The CF would not be complicated because it was known that it was against the share price and would only be subject to such conditions.” Defendant G and BP requested the CF to defend or set off the share price. There is no circumstance in which Defendant G and BP requested the CF to do so.

C. Conclusion

Thus, this part of the facts charged constitutes a case where there is no proof of a crime, and thus, the defendant G is acquitted under the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment under Article 58(2) of the Criminal Act, and the defendant A, B, and F shall be acquitted under the latter part of Article 325 of the Criminal Procedure Act, and the defendant A, B, and F shall be acquitted under the latter part of Article 325 of the Criminal Procedure Act. However, inasmuch as it

Judges

The presiding judge, judge and superior judge

Judges' Senior Completion

Judges Hah-woo

Note tin

1) On March 2012, subject to the reservation of delisting in AA’s delisting review, Defendant A created a pledge against AA for shares of the Republic of Korea on March 28, 2012, in preparation for the following: (a) Defendant A’s entire share of KRW 8 billion, excluding KRW 2 billion, which has accumulated the bad debt allowances among the advance payment of KRW 10 billion, was established; (b) Defendant A was instructed to put all eight billions into reality regardless of the outcome of the lawsuit, within six months after the completion of the lawsuit for return of advance payment with AO; and (c) Defendant A established a pledge against the shares of KRW 2,334,458, in the name of the Ministry of Strategy and Finance, KRW 2,00,00, KRW 1,000, KRW 5,334,458, in the name of the Defendant; and (d) Defendant A’s name, KRW 5,00,00.

2) Article 1,334,458 of the title AT was a merged new shares, and the protection period of two years was lowered on or around July 5, 2012. Defendant A terminated the pledge on September 24, 2012, prepared a sale amount of KRW 2,402,012,605 on the basis of the price manipulation, and then donated an amount of KRW 2 billion to AA for the purpose of AA’s acquisition fund and used the remainder for personal purposes.

3) On September 24, 2012, trading volume of 981,655 weeks + 9,25. Trading volume of 675,250 weeks