Defendant

Prosecutor

Red bonds, and trial proceedings;

Attorney Park Jong-soo (Korean)

Seoul Central District Court Decision 201Da4640 Decided March 13, 2013

The judgment of the first instance is reversed.

Defendant shall be punished by a fine of KRW 10,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

1. Summary of the facts charged

The Defendant is a person who was engaged in the business of developing and operating derivatives from July 4, 2005 to July 3, 2009 and retired from the Defendant.

On April 18, 2008, Non-Indicted Company 1 issued and sold securities linked to stocks (Equi-Lind securities; hereinafter the same shall apply) on 357 occasions. The instant securities were used as an underlying asset for Non-Indicted Company 2’s stocks (hereinafter “Non-Indicted Company 3’s stocks”) and Non-Indicted Company 3’s stocks (hereinafter “Non-Indicted Company 3’s stocks”) on 19 April 2010. The final maturity is 452,00 won, the initial base price of Non-Indicted Party 2’s stocks was 120,000 won, and the initial base price of Non-Indicted Party 3’s stocks was 120,000 won before the maturity of 6 months from the date of their issuance, whichever is later than the initial base price of the underlying assets : at least 20% prior to the expiration of 15% of the interim base price (the interim base price of the underlying assets : at least 15% of the closing date; 20% of the first underlying assets 3%.

The Defendant performed the management of the deel hedging of the instant ES by using Nonindicted Company 1’s account (Account Number omitted) opened in the Korea Exchange via the Nonindicted Company 1’s account (Account Number omitted).

On the other hand, on December 16, 2008, the Korea Exchange sent to each member securities company a public notice containing the contents of “the prohibition of excessive termination order at the time of the hedge trading” under the title of “the notice on matters related to the hedge trading and the short sale on consignment,” and the Defendant was sufficiently aware of the above public notice via the in-house bulletin board.

On April 13, 2009, before the second interim evaluation date of April 15, 2009, the Defendant discovered the increase in dedele fluctuations of Non-Indicted 3’s shares, and came to know of the fact that early redemption of the instant ES was imminent. In the process, the Defendant came to know the fact that the loss in the part of the operation of the ES itself can be expanded if the instant ES is early redemption due to the occurrence of the loss in the part of the ES itself. In light of the fact that the loss in the part of the ES itself would occur when the instant ES is early redemption, and the price of Non-Indicted 3’s shares was formed above the fulfillment price of the terms and conditions during the connection trading period on the second interim evaluation date and sold at the price is above the fulfillment price of the terms and conditions, but it could be sufficiently prepared for the early redemption fund, without active implementation, to avoid the payment of the interim redemption condition, the Defendant’s share price of Non-Indicted 3’s shares was fixed to less than KRW 96,000.

On April 15, 2009, the office of ○○○ Building Derivatives Operation Headquarters located in Yeongdeungpo-gu Seoul ( Address omitted) submitted sales orders at a price lower than the expected concluded price formed in the market for the stocks of Nonindicted Co. 3 to the Korea Exchange using the above account during the period from 14:52:0 to 14:59:55, the concurrent house for the final decision is time period.

Around 14:52:00 on the same day, the forecast conclusion was set at KRW 95,500, which was lower than KRW 400,00, and the forecast conclusion was set at KRW 500,000, which was set at KRW 95,500, which was set at KRW 90,000, and the forecast conclusion continued to be higher than the redemption price of the conditions, around 14:58:50 on the same day, around 14:58:50, which was lower than the redemption price of the conditions; KRW 90,900 on the 97,40,000, KRW 90 on the 90,50, KRW 90 on the 95,00, KRW 90 on the 905,00 on the 95,00 on the 90,05,000 on the 90,000 on the 95,05,094 on the 90.

2. Judgment of the first instance: Innocence;

The first instance court found the Defendant not guilty on the grounds that the evidence submitted by the prosecutor alone is insufficient to acknowledge any sale order, as stated in the facts charged, between April 15, 2009 and April 14:52:00 and April 5, 2009, which is the second interim evaluation date of the instant ES, when the Defendant sold Non-Indicted 3’s shares, and the sales order was issued at a price below 87,000 shares in total or below the fulfillment price of the condition of the instant ES, and as a result, the closing price of the instant ES was 95,900 won on the day, and as a result, the second interim redemption condition of the instant ES was not fulfilled. Furthermore, it is recognized that the Defendant was unable to accept the order by the artificial manipulation for the purpose of market price setting.

In other words, since ESS is a financial product that determines investment profits by using an underlying asset of an index, bond, stock, etc. in connection with changes in the price of specific stock certificates or stock price index, the ES issuer is bound to trade the underlying asset of ESS through the financial method of so-called “deel hedging” in order to avoid risks arising from the issuance of ES and secure financial resources for redemption, and so long as delel hedging is a transaction of underlying assets, the change in stock price arising therefrom shall be deemed a normal supply and demand due to market factors. However, if the fulfillment of redemption conditions, such as ESS in this case, is determined by the interim assessment date, it appears that there is a big change in the provisional sale period in which the redemption price is determined by the interim assessment date, so it is difficult to concentrate on the single sale period near the date of the formation of the delel in accordance with the closing price, as well as on the price of the order for redemption, which is less likely than the estimate trading price, and thus, it cannot be evaluated as a single sale price.

② According to the record, the Defendant was engaged in hedging transactions through 10 swap agreements, including 10 ESSs, which were integrated into 10 ESSs and 2, and it was difficult for the Defendant to conclude the 150,000 shares of Nonindicted Company 3 to 14:00 shares were sold from 14:30 to 14:52,00 shares were sold at 0,000 won during the 10-point period period after confirming that the 40-point period of redemption was 50,00 shares were 1:0 shares to be held at 10,000 shares, and it was difficult to conclude that the 40-point period of redemption was 50,00 shares were 1:0 shares to be held at 10,00 shares before the 40-point period period of redemption, and then, it was difficult to conclude that the 10-point period of redemption was 50,000 shares before the 10-point period of sale.

③ In addition, in order to determine whether Nonindicted Company 1 suffered loss due to the operation of the instant LS, as a whole, in the spot part of derivatives, which is underlying assets, the entire amount of profit and loss remains zero. In addition, in order to determine whether Nonindicted Company 1 sustained loss due to the operation of the instant LS, not only Nonindicted Company 3 and Nonindicted Company 2’s stocks, but also profits and losses arising from the ES itself, should be considered together. Considering that Nonindicted Company 1’s trading and evaluation loss of Nonindicted Company 3’s stocks and Nonindicted Company 2’s stocks, which are underlying assets due to the instant ES self-hedging transaction, from April 2008 to June 2009, the period for managing the instant LS, the interim redemption of the instant LS would not be deemed to have fulfilled the obligation to pay the instant interim redemption on the 3rd day, even if the value and loss incurred by the ES itself reaches KRW 6.127 billion,49,900,000,000,000,000.

3. Summary of grounds for appeal by prosecutor: misunderstanding of facts and misapprehension of legal principles.

Even in cases where a deel hedge transaction is an act of fixing the market price of financial investment instruments, the act constitutes, in principle, an act of fixing the market price, which is prohibited by the Financial Investment Services and Capital Markets Act (hereinafter “Capital Markets Act”). It is exceptionally permitted only in exceptional cases prescribed by the Act, or where it does not violate social norms, such as acts or duties under statutes. In particular, in cases where a product is determined to fulfill the conditions of redemption before the end of the market, as in the instant ES, if it is well known that the transaction conducted before the end of the market was directly affected by the fulfillment of the conditions of redemption before the end of the market, the Defendant did not implement it, even though it was well aware that the transaction conducted before the end of the market was directly affected by the fulfillment of the conditions of redemption before the end of the market. This constitutes a continuous large volume sale order, which does not constitute a hedge transaction within the legitimate scope, and constitutes an act of determining the market price prohibited by the Capital Markets Act

4. Judgment of the court below

A. Summary

(i) Relevant legal principles

"Purpose of fixing the market price of securities, etc." under Article 176 (3) of the Financial Investment Services and Capital Markets Act is to fix the market price at a certain market price by artificially manipulating the market price and trading volume of securities, etc. to be formed in a free competitive market according to normal supply and demand based on other factors not attributable to market factors. This is not a matter of whether there exists a separate purpose at the same time or a certain purpose is the main purpose. Whether the requirements are satisfied should be determined each individual case, comprehensively taking into account the nature of the securities, etc., the total number of issued securities, etc., the price and trading volume trends, the transaction situation before and after the issuance, the economic rationality and fairness of the transaction, the motive and attitude of the transaction (or a decline), etc. (see, e.g., Supreme Court Decisions 201Do606, Dec. 12, 2003; 201Do30134, May 23, 2016).

Sheet Judgment Summary and Order

In light of the above legal principles, comprehensively taking account of the following facts acknowledged by the evidence duly adopted and examined by the first instance court and the first instance court, it can be acknowledged that the Defendant committed a series of buying and selling the instant ES with a view to fixing the market price under Article 176(3) of the Capital Markets Act as seen below.

On the contrary, the argument that the Defendant did not have any motive to obstruct the fulfillment of the condition of redemption before the redemption in the course of the deel hedging, which is required due to the characteristics of the instant ES products, is insufficient to view that there was sufficient evidence and logic to the extent that it could interfere with the recognition of the facts constituting the elements of the instant ES products, and that there was no counter-proof otherwise.

As to the recognition of facts with regard to the elements of a crime, I will examine the following facts: (b) basic and circumstantial facts; (c) the act of the defendant at the market price at the time of a single temporary sale; (d) other circumstantial facts; and (e) the judgment on the opposite claim of the defendant, which was the conversion of deteel hedging transactions, is specifically described.

(b)basic and critical facts;

(i)the personal affairs, duties, and salaries of the defendant;

㈎ 피고인은 박사 학위의 수학 전공자로서 2005. 7.경 공소외 1 회사에 입사하여 이 사건 이후인 2009. 7.경 퇴사하기까지 과장으로 재직하였다.

㈏ 공소외 1 회사는 이 사건 당시 파생상품 운용본부를 두고 ELS 발행·운용과 헤지거래 업무를 담당케 하였는데, 피고인은 위 부서에서 공소외 5 상무보의 지휘, 감독 하에 헤지거래 업무를 담당하였다.

㈐ 피고인이 2005. 7.부터 2009. 7.까지 약 4년의 근무기간 동안 받은 총 급여는 합계 약 5억 8,370만 원이고 그 중 성과급은 합계 약 2억 4,500만 원으로, 성과급 비중이 1/2에 달한다. 한편 성과급은 파생상품운용본부 단위로 통합하여 관리되면서 총 10차례에 걸쳐 지급되었다.

Shed Nonindicted Company 1’s ES Operation and Hague Status

㈎ 공소외 1 회사 파생상품 운용본부는 당시 발행된 ELS 전체를 기초자산 종목 별로 통합하여 자체적인 동적 델타 헤지(dynamic delta hedge 주3) ) 방법과 수 개의 변동성 스왑 거래로 리스크를 관리하였다.

㈏ 피고인은 당시 헤지거래 담당 트레이더로서, 이 사건 ELS를 포함하여 공소외 1 회사가 발행한 총 123개, 발행총액 4,694억 원의 ELS 전체 기초자산을 종목 별로 통합하여(공소외 3 회사 주식의 경우 이를 기초자산으로 발행된 총 9개 ELS를 통합하여) 델타헤지 계산 프로그램에 의해 산출된 헤지요구수량을 참조하여 주식의 매도·매수를 하는 방법으로 헤지거래를 하였다.

【【Status of Issuance and Operation of the instant ES

㈎ 공소외 3 회사와 공소외 2 회사 주식을 기초자산으로 하여 2008. 4. 18. 발행된 이 사건 ELS의 개요는 공소사실 기재와 같고, 발행총액은 80억 8,100만 원, 매수자(투자자)는 총 408명이었다.

㈏ 공소외 3 회사 주가는 2008. 7. 이후 미국발 금융위기로 하락세로 들어서 2008. 10. 15. 1차 중간평가일에 조건(102,000원 이상)이 성취되지 않은 채 2008. 10. 27. 장중 43,950원까지 하락하였다가 상승세로 반전하여 2009. 4.경 100,000원 수준까지 지속적으로 상승하였다. 이와 같은 주가 추이 하에서 2008. 4.부터 2009. 6.까지 이 사건 ELS 기초자산의 헤지거래에서 공소외 3 회사 주식의 매매 및 평가 손실이 61억 2,700만 원이나 발생하였다. 마찬가지로 같은 기간 공소외 2 회사 주식도 24억 9,900만 원의 매매 및 평가 손실이 주4) 발생하였다. 이러한 사정 하에서 ELS 운용부서에는 2009. 4.에서야 기초자산 주식매매에서 수익이 발생하기 시작하였다.

㈐ 한편 공소외 1 회사는 2008. 하반기 미국발 금융위기로 변동성 스왑 거래에서 손실이 발생하여 2008. 1.부터 2009. 3.까지 기간 중 ELS 자체헤지 운용 부문에서 약 83억 8,900만 원의 누적손실이 발생한 상태였다.

㈑ 부서 내에서 피고인의 관리 감독자인 공소외 5 상무보가 주기적으로 ELS 운용 성과 자료를 보고 받았다고 진술한 바에 의하면, 위와 같은 ELS 운용 실적 내지 성과는 피고인을 포함하여 부서 내에서 공유되고 있었다고 보인다.

㈒ 이상의 사실에다가, ① 이와 같은 상황에서 2차 중간평가일인 2009. 4. 15. 중도상환조건이 성취될 경우 투자자들에게 원금과 24%의 수익을 상환하여야 하므로 발행가액과 상환가액의 차이인 19억 1,500만 원을 손실 처리해야 하는데 반해, ② 당시 미국발 금융위기로 인한 시장 충격이 완화되면서 변동성 스왑거래의 손실 감소 및 주가 상승세에 따른 차익거래로 인한 실적 개선이 예상되고 있던 점이라든가 ③ 일반적으로도 ELS 발행사는 헤지거래의 일환으로 기초자산을 만기까지 운용하면서 얻을 수 있는 변동성을 이용한 차익거래의 기대이익이 있는 주5) 점 주6) 등을 보태어 보면, 피고인에게 이 사건 ELS의 중도상환을 방해하여 당장의 손실을 피하고 기초자산을 차기 평가일 또는 만기까지 계속 운용하면서 얻을 수 있는 이익을 기대하기 위한 시세고정의 유인 내지 동기도 인정된다고 볼 수 있다.

• The second interim evaluation date of April 15, 2009, Non-Indicted 3's share price trends and sales volume of the defendant on April 15, 209

㈎ 공소외 3 회사 주가는 2009. 3. 이후에는 지속적 상승추세에 있었고, 2차 중간평가일 전날인 2009. 4. 14. 종가는 97,000원으로 중도상환조건인 96,000원 이상이었다.

㈏ 2009. 4. 15. 당일 주가는 전일 종가인 97,000원 대비 500원 하락한 96,500원으로 시작하여 일시 하락 후 상승세로 반전하여 09:40경 이후 중도상환 조건성취가격인 96,000원 이상으로 진입하여, 13:20경 약 10분 정도 96,000원 약간 낮은 가격에 있었던 외에는 장중 대부분의 시간 동안 조건성취가격인 96,000원을 상회하였다.

㈐ 피고인은 2009. 4. 15. 오전 장 초반 공소외 3 회사 주가가 일시 하락세를 보일 때 500주를 매수하고 상승세로 반전된 이후 직전가 대비 100원 내지 900원 고가에 5,000주를 매도하였으며, 09:55경 직전가 대비 2,700원 내지 8,700원 높은 103,000원 내지 106,000원에 총 64회 합계 100,000주의 매도주문을 냈으나 현재가와 차이가 커서 매매가 체결되지 않았다.

㈑ 그러다가 피고인은 오후 14:30경부터 14:50경까지 접속매매 시간대에 총 62회에 걸쳐 합계 60,500주를 매도하였고, 이는 동시간대 공소외 3 회사 주식 전체 거래량인 97,220주의 64.5%에 달하였는데, 매도량의 87.9%를 직전가와 동일 또는 저가로 매도하였다.

㈒ 이상의 사실을 종합하여 보면, 당시 공소외 3 회사 주가 추이가 조건성취가격인 96,000원 이상의 종가로 마감될 가능성이 매우 컸다는 사실을 인정할 수 있다.

In addition, as seen earlier, the Defendant alleged that there was a need to liquidate the Hague volume in preparation for the redemption before maturity at the time, but in fact, the Defendant did not actively make efforts to liquidate the volume by making only 100,000 shares sale orders on an unrealistic door to the head of 5,000 shares that were not concluded, in particular, even at 5,00 shares sold during the morning.

(c) Fixing the market price of the defendant at a time when the type of paper is traded at a single price;

(1) Details of the purchase and sale of the defendant at the same time as the paper is traded;

㈎ 피고인은 공소외 5 상무보에 대한 보고 및 감독 하에, 이 사건 ELS 2차 중간평가일인 2009. 4. 15. 장 마감 직전 종가결정을 위한 동시호가 시간대(14:50부터 15:00까지 10분) 중 14:52:00부터 14:59:55까지 7분 55초 동안 총 5회에 걸쳐 총 87,000주, 합계 83억 3,750만 원 상당 물량을 모두 예상체결가격보다 저가로 매도주문을 냈고, 결국 종가가 95,900원으로 결정되고 78,763주가 매매체결 되었는데, 그 상세내역은 아래와 같다.

The estimated sale price of 14:52:00 won after the previous heading, 95,500 won after the previous heading, 14:52:00 won, 95,500 won, 95,500 won, 7,900 won, 95,900 won, 95,90 won, 90, 905,90 won, 90, 905,90 won, 90, 905, 90, 905, 90, 90, 905, 90, 90, 905, 90, 90, 905, 90, 90, 205, 90, 90, 205, 90, 90, 195, 90, 90, 190, 95, 90, 90, 900, 90, 1900

㈏ 이러한 종가 단일가매매 시간대의 공소외 3 회사 주식 예상체결가격 변동과 피고인의 매도주문의 추이를 그래프로 보면 아래와 같다.

A person shall be appointed.

(※ 세로축 : 예상체결가격, 가로축 : 시각, ↓ : 피고인의 매도주문시점과 매도주문수량)

Shebly Sheet market records and coloning rates

Such sales volume 78,763 78,763 78, the closing price reaches 97,087 81.1% of the total trading volume of non-indicted 3's shares entered into at the time of the closing price, and the actual price of the market was overfilled as follows, and the opening price ratio reaches 24.3% per week.

Secondly, in the light of the single sale method, this paper analyzes this sale mode.

㈎ 종가 결정방법은 단일가매매 방식에 의하는데, 이는 매도·매수 주문이 있더라도 즉시 매매가 체결되지 않고, 단일가매매 시간대에 접수된 전체 매도·매수 주문 중 매도호가와 매수호가의 합계 수량이 일치하여 매매가 가장 많이 이루어질 수 있는 가격(합치가격)에서 모든 거래가 단일가격으로 체결되는 방식이다.

Accordingly, each securities company shows the expected conclusion price and expected conclusion quantity in the trading system based on the consistent price calculated on the basis of the quantity of sales orders and the purchase price calculated on the basis of the purchase price calculated on the basis of the purchase order price and the purchase price.

㈏ 종가 결정방법이 단일가매매 방식이라는 점에 비추어 볼 때 피고인의 위와 같은 매도 양태에 관하여 아래 사실이 추론된다.

① In light of the following facts, in order to place an order for sale of KRW 1,500 (total amount of KRW 4.795 million) at a low price of KRW 97,400 or below KRW 95,900 (amount of KRW 4.795,000) at the end of 14:5,58:50, which remains after 10 seconds of the end of 10 seconds, or the estimated conclusion amount of KRW 33,653, or KRW 8) at a low price of KRW 95,900, or 50,000 (amount of KRW 4.795,00,00) at the end of 10 seconds, the number of orders to be bought during the previous and remaining hours of 95,90,00 won at the end of 90,000 if the number of orders to be bought at the end of 90,500,000 won, or more at the end of 90,509,09,09, etc.

② 실제로 위 매도호가 후 예상체결가격은 95,900원으로 하락하였고, 예상체결량은 57,524주까지만 상승하여, 위 50,000주의 매도주문수량조차 그 시점까지 최대 약 26,000주(≒ 호가 전 33,653주 + 50,000주 - 호가 후 57,524주)가 소진되지 못하고 남은 상태로 되었다.

Since then 58 seconds, the estimated purchase price is 95,900 won, and the expected purchase price is 72,900 won, while the expected purchase volume is 14:5,900 won, the sale order of 10,00 won lower than the estimated purchase price of 95,800 won means that the prior 95,900 won was intended to be entered into a sale price of 95,800 won prior to the expected purchase price of 95,90 won, and the defendant still remains in the same expected purchase price of 72,901 shares after the first 95,800 won, and the same quantity of 95,90 won was converted from the estimated sale price of 90,000 won to the estimated sale price of 95,90 won, the defendant maintained the order price of 905,500 won by this order.

③ Nevertheless, the Defendant submitted orders for selling KRW 10,00 (10,000) again after two seconds. That is, the subsequent two seconds of purchasing volume of KRW 96,00 and KRW 14:59:50 with the expected conclusion amount of KRW 86,287, and the expected conclusion amount of KRW 10 and KRW 95,800 with a lower price of KRW 95,800 (total amount of KRW 958,000) compared to the above anticipated conclusion price of KRW 96,50 and KRW 95,00 with a lower price of KRW 96,00,00,000 (the estimated price of KRW 96,00 as KRW 95,90 and KRW 100,00 as KRW 95,00). Moreover, the Defendant had no clear intention to conclude orders for selling KRW 90 and KRW 909,00 as KRW 9,00,00 for the remaining purchasing price.

④ 나아가, 그와 같은 매도주문으로 인하여 실제로 예상체결가격이 95,900원으로 다시 하락하고 예상체결량이 호가 전 86,287주에서 93,220주로 됨으로써, 직전 95,800원에 10,000주의 매도주문으로 인해 그 주문이 먼저 소진하고, 그에 앞섰으나 호가가 높은 95,900원 매도주문 수량의 미소진물량이 최대 약 3,000주(≒ 호가 전 86,287주 + 10,000주 - 호가 후 93,220주)나 남은 것을 알 수 있는 상황에서 14:59:55 장 종료시점을 5초 남겨둔 시점에서도 계속하여 예상체결가격보다 100원 낮은 95,800원의 매도호가로 10,000주(총 9억 5,800만 원 상당 물량)의 매도주문을 한다는 것은, 역시 종가를 95,900원으로 예상한 것이고, 앞서 제출된 95,900원 매도주문물량 보다도 선순위로 위 95,800원에 10,000주 매도주문물량을 우선체결 되게 하는 것이며, 그럼으로써 앞서 남아있는 최대 약 3,000주 정도의 95,900원 매도주문물량이 여전히 미체결상태에 있게 하여 남은 5초 사이에 위 95,900원 잔존 매도주문물량을 소진시키고도 남을 수량의 96,000원 이상 매수호가 매수주문이 인입되지 않는 한 위 95,900원의 예상체결가격이 그대로 종가로 유지된다는 것을 의미하므로, 여기에 당시까지의 매수호가 수준과 매수주문수량의 규모 및 매수주문 추이 등을 고려하여 볼 때 남은 5초 사이에 그와 같이 96,000원 이상의 매수호가 주문수량이 피고인 매도물량을 전부 소진할 정도로 인입될 가능성이 거의 없어 보이는 점까지를 보태어 보면, 피고인이 계속하여 95,900원을 종가로 예상하는 한편 95,900원을 종가로 유지할 의도로 위와 같은 주문을 하였다는 사실을 인정할 수 있다.

⑤ As a result, the closing price was 95,900 won after five seconds.

㈐ 이러한 내용들은 일반인이라도 단일가매매 방식을 알고 종가 동시호가 시간대에 주식을 거래하는 자라면 통상 인지할 수 있는 것으로서 단일가매매 방식 자체로부터 도출되는 내재적인 계산 결과이므로, 전문 트레이더로서 수천억 원 상당의 ELS 헤지거래를 3년 이상 담당해 온 피고인으로서도 충분히 알고 있었다고 봄이 상당하다.

In other words, as seen above, the Defendant, at the time of each order, found that the order was derived from the inherent calculation principle of a single unit sale method as seen above, and was determined below KRW 96,00,00, the closing price of which is the 96,000, which is the fulfilment price of the terms and conditions. Furthermore, the Defendant’s above sale order was determined below KRW 96,00, and thus, it did not fulfill the interim redemption condition of the instant ES, and accordingly, was determined as KRW 95,90, which is the fulfilment price of the terms and conditions, and accordingly was actually lower than KRW 96,00.

· Sub-determination

In full view of all the above facts, it is reasonable to view that the Defendant fixed the market price of Non-Indicted 3’s shares by submitting an order for sale of the total amount of KRW 87,37,500,000, which is a volume exceeding 80% of the total amount of KRW 87,37,500,000, five times in total during the period of a single provisional sale, for the purpose of fixing the share price of Non-Indicted 3’s shares to be less than KRW 96,00,000, which is the redemption price of the instant ES, at a lower price than the estimated contract price.

(d) Other circumstantial facts.

(1) The following circumstances exist to support the recognition of the Defendant’s above-mentioned act of price enhancement.

After the completion of the transaction on Sheshed, there was a civil petition, such as a telephone call, and there was controversy inside the non-indicted 1 company.

Accordingly, the representative of Non-Indicted 4's management support headquarters, who is the superior of the defendant, has been criticized in selling the next day by referring to the "bed or sold in bad faith", and the establishment of countermeasures was discussed within the company.

On April 16, 2009, Non-Indicted 6 filed a civil petition by asserting that Non-Indicted 1 sold an underlying asset in bulk to the Financial Supervisory Service to prevent early redemption and the share price has fallen.

x) On April 17, 2009, Nonindicted Co. 1 agreed to withdraw a civil petition instead of returning the sum of the principal to be paid in the event that the conditions for the second interim redemption are met through Nonindicted Co. 11 with Nonindicted Co. 6’s contribution by Nonindicted Co. 9’s managing director and Nonindicted Co. 10’s managing director Nonindicted Co. 7, which is the following day, and accordingly, he paid KRW 124 million to Nonindicted Co. 6 by April 24, 2009.

(v) On October 14, 2009, the third interim evaluation date, the ES of which was 2.6 billion won, the difference between the issue price of the instant ES and the early redemption price of KRW 9.96 billion was 2.6 billion, when the share price of the underlying asset was 36% higher than that of the ES (Nonindicted Co. 3, 113,500 won, Nonindicted Co. 2, 515,000 won).

E. Determination as to the defendant's counterclaim that he was a part of the deel hedging transaction

(1) Summary of the counterclaim of the defendant

For this reason, the Defendant was bound to pay the above large volume of sales orders by concentrating the closing price at the same time. The Defendant asserted that the sales orders were made at the prices below 96,000 won, regardless of the fulfillment of the conditions for the redemption before maturity, in order to clearly settle the risks arising from the issuance of the instant securities, and that Nonindicted Co. 3’s share price has increased considerably under special conditions that change in the vicinity of 96,000 won, which is the conditions for the redemption before maturity. Thus, the Defendant did not agree with the motive of the instant securities redemption.

She review and determination

㈎ 조건성취에 대비하여 조건성취를 무산시킴

First of all, the defendant's assertion that the closing price lower than the expected execution price by submitting a sale order of an absolute large quantity below the expected execution price in a single sale time zone, but the reason for such an act was put in preparation for the fulfillment of the condition, is nothing more than that of the act to prepare for the fulfillment of the condition, and thus, it is contradictory to the defendant's assertion that the fulfillment of the condition itself itself was not an act to prepare for the fulfillment of condition.

㈏ 매도수량이 당시 산출된 헤지수량이라는 점을 인정할 근거나 자료가 없음

① The Defendant asserted that, in cases where the condition of redemption before maturity is fulfilled due to the deton value of the hedge demand at the time, the shares to be sold were calculated 50,000 shares or 30,000 shares or 40,000 shares, regardless of whether the condition of redemption before maturity is fulfilled, but there are no objective data or grounds to acknowledge that the above quantity was actually calculated due to the hedging demand. In fact, there are no data or grounds to support that the Defendant calculated the above quantity as the basis for calculating the above quantity, and even if the value of the dele value was kept based on the closing price at the risk management headquarters, there is a difference between the actual sales price of the Defendant and half (24,850 shares on the day of the materials kept at the risk management headquarters; -143,763). The Defendant’s actual sales volume on the day of the materials kept at the risk management headquarters, it is difficult to acknowledge that the Defendant asserted that the sale order or the sale price was calculated based on the hedging price.

② In relation to this, the Defendant asserted that, on the grounds that the overall flow between the value of actual hedge transaction and the data on the deton value calculated by the risk management headquarters, the Defendant faithfully hedginged by the Defendant, and as a part of that, made transactions identical to the facts charged in the instant case. However, the two materials are similar only to the overall flow, and there is a gap and gap between them, and it does not necessarily indicate whether the concentrative sale of large quantities between the 10 minutes of the closing decision on the day of the second interim evaluation was inevitable, or whether the concentrative sale of large quantities by the Defendant was based on the delta value calculated in a genuine manner.

㈐ 종가 단일가매매 시간대에 조건성취가격보다 낮은 매도호가로 주문할 수 밖에 없었다는 주장에 관하여

The Defendant alleged that the Defendant placed an order to sell KRW 50,00 below 95,90 when the closing price is 96,000 or more won when the closing price is 96,000 won, is the highest selling price which can be fully liquidated. However, as seen earlier, the Defendant’s assertion that the expected closing price at the time of issuing an order to sell KRW 50,00 is 33,653 because the estimated closing price at KRW 50,000 was 95,90,000 because the estimated closing price at KRW 50,000 was 95,000,000 won was 50,000 won, as seen earlier, in light of the inherent calculation principle of a single selling method, and the purchase price at KRW 95,90,00 until the time, the level and quantity trend, etc. at KRW 96,00 is very high, and thus, it is difficult to believe that the above selling order will be 96,00 won or more.

② If the Defendant initially traded hedging in preparation for the fulfillment of the conditions of redemption before maturity, the Defendant’s selling act ought to have offered a sales call based on KRW 97,400,00, which is the expected conclusion price at the time, with the Defendant’s efforts to avoid lowering the closing price at a minimum amount of KRW 96,00,00, which is the price of the fulfillment of the conditions. Rather, it is difficult to find out such circumstances, and rather, it can only be acknowledged that the Defendant rendered sales orders that actively form the closing price at KRW 95,90, as seen earlier.

③ Furthermore, with respect to the Defendant’s assertion that it was not possible to place an order for a sale price below the 1stic price below the fulfilment price in order to liquidate a certain hedge volume during a single unit trading period, there are cases where: (a) the closing price is higher than or the same price is sold at the same price during a single unit trading period in a similar situation, such as △△△ Securities No. 157, 647, △△ Securities, △△ Securities No. 647, and △△ Securities No. 1785, ES.

In addition, there are cases where foreign securities companies, etc. do not based on the expected contract price at the time of a single unit trading, and there are cases where the market orders sales, and furthermore, there are cases where there are counter-proofs that actively liquidateing the hedge volume through the distributed trading during the connection trading period from the am to the front day of the redemption period, not from the end time of the closing price.

④ Since the instant case, the market supervision committee prepared more active and strict guidelines for the hedge trading on July 21, 2009, and conducted more active and strict management and supervision of its members, and thereafter, the domestic ES issuer failed to maintain risk management due to the failure in the hedge management even though the company was engaged in the last time transaction on the day of the redemption before the redemption date, or early liquidation of the volume before the redemption date, and accordingly, the ES market was constantly increased.

⑤ Therefore, the Defendant’s assertion that, in order to deel hedging, it was difficult to accept the Defendant’s assertion that: (a) concentrating the hedge volume before and after the date of redemption on a single unit of provisional sale, there was a diversity that it was inevitable to sell only at a price lower than the expected date (in fact, the lower price of the terms and conditions as follows).

㈑ 이 사건 ELS 성격 자체에 내재된 델타 헤지 원리에 따른 중도상환일 전 불가피한 대량 매도였다는 주장에 대하여

① The Defendant asserts to the effect that: (a) the ES itself requires a deel hedging; and (b) the instant ES itself calls for a large volume of sale before the date of redemption before the maturity in the event it takes place in the context of the goods itself; and (c) ultimately, the instant ES poses the possibility of causing the so-called “swaying” situation in which redemption conditions are avoided.

② In order to secure soundness in asset management, the ES issuer has a duty to avoid and manage the risk in an appropriate way, i.e., to avoid and manage the risk, and the delta hedging method has been used as a theoretical and practical solution in the way of hedging up to now. In the hedging of the instant ES, it can be recognized that the Defendant also adopted the dedela hedging method and took the method of trading stocks of underlying assets, referring to the dedela value calculated in the system. Moreover, it can be sufficiently recognized that the hedging transaction following the price fluctuation of underlying assets may have an impact on the share price rather than the market price.

③ Furthermore, immediately from the above facts, it is not derived from the evidence or logic that the Defendant’s act of trading 87,000 shares of 87,00 shares or more over five minutes at the end of the 7th interim evaluation day of the instant second interim evaluation day of the instant case at a lower price than the expected conclusion price, was the first exchange of the hedge transaction, was the de de deton hedging method, was the appropriate method, or was the legitimate category of transaction that is allowed by the positive law.

④ In other words, only a company’s risk management method is limited to a company’s risk management method, and due to the gap between theories and reality, the delta hedging method itself gives a certain discretion to Tracher. Therefore, even under the name of the delta hedging, various types and methods of transactions are being taken by each issuer or Tracher, and the Defendant also refers to the dedele value shown by the system, and the Defendant actually engages in the hedging transaction with a certain discretion in terms of whether to sell or purchase, time, quantity, etc., under its own judgment based on expert knowledge.

Therefore, even if deel hedging is not exempt from the obligation to comply with all regulations including laws and regulations governing trading in the market, it has been continuously attracting attention and supervision by previous supervisory agencies as follows.

(b) On December 16, 2008, the Korea Stock Exchange market surveillance committee of the Korea Stock Exchange (“The Korea Stock Exchange”) under the title “the notice of significant matters related to the entrustment, etc. of the hedge trading and the short sale will result in the increase, decline, fixing, and stability of the market price if continuous submission of the price involved in the specific market price, such as the closing price, in the course of the hedge trading.” Since the submission of the price involved in the market price before and after a specific date, such as the date of exercise of the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the market price, the market surveillance committee of the Korea Stock Exchange shall pay attention to each other so that it does not violate the relevant Act and subordinate statutes in the course of the hedge trading, and shall endeavor to minimize the impact on the formation of the market price (whether the underlying asset subject to the hedge trading, immediately preceding or top price, etc.).”

In addition, five times, supervisory agencies sent to each member company including Nonindicted Company 1 a letter of guidance to prohibit excessive participation in ES hedge trading at the time of ES hedge trading.

In both Nonindicted Company 1 and Nonindicted Company 1, both of the foregoing guidance questions were circulated to executive officers and employees through the electronic bulletin board in the department.

⑤ Considering the above, the Defendant’s above assertion cannot be accepted, since it is not permissible for any transaction under the dele hedging.

㈒ 중도상환일 직전 전량 매도 필요성 주장에 관하여

① Finally, according to the deel hedging principle, the deel value rapidly increases as of the interim evaluation date, as in the instant case, when the share price gets in the vicinity of the base price (e.g., the base price). In order to meet the deel value zero and to raise financial resources for repayment, the claim that the former 12th day before the redemption date should not be disposed of in full the hedging quantity of the relevant ls.

② According to the deel hedging principle, it can be acknowledged that, in the case of one ES, the entire shares, which are underlying assets, should be disposed of before maturity or at maturity, or that, in the case where the share holder runs in the nearby wife on the interim evaluation date, the deel value trend can be the same as the defendant asserts.

③ However, such assertion appears to be theoretically constituted under the assumption that the liquidity except for the underlying asset of the ES is zero, namely, only one ES issuer, (a), and (b) ( frequently reflecting the change in the detone value due to the price fluctuation from time to time) by the deel hedging method.

④ In light of its reality, as in the instant case, around approximately 120 ESS’s underlying assets are managed by integrating them for each issue, and in the environment of seeing the dedelic value in the integrated form, as it is distributed more risk and asset management is stable. As such, around one interim evaluation date of ES’s total pool, the risk that the underlying asset price rapidly changes due to the move in the wife around the middle of the ES, (such as high-price and low-price sales loss risk) and cost (large-scale sales, etc.) is likely to occur, and the liquidity problem is likely to occur. (C) In particular, under the relevant laws and regulations, it is difficult to view that the ES issuer is liquidity that the ES issuer has secured the net operating capital only under the conditions of securing the net operating capital, and thus, it is difficult to say that there is a lack of theoretical and theoretical necessity for the ES issuer’s share price to be generated from the net sales price to the low-point sales price of the relevant 1 ES.

⑤ In addition, even if the dedele value becomes zero after the end of the interim assessment date, as alleged by the Defendant, even if the dedele value has increased rapidly as of the end of the interim assessment date, such rise is not caused by the share price fluctuation, but by the interim assessment date (the share price does not change separately from the base price point). Therefore, the dedele value is basically a method of purchasing and selling shares in the form of low price and high price sale, based on the index that changes in the dedele value according to the change in the “stock price.” However, in this case, the dedele value should be considered as the dedele value due to the change in the “dedele value,” which is the date of the interim assessment before the expiration of the interim assessment date, so it is doubtful whether the dedele value should be applied to the dedele value due to the changes in the “dedele value,” and it is still difficult to apply the dedele value due to the above increase in the interim assessment date.

㈓ 소결

In full view of the above contents, the counterclaims to the purport that the act of market price determination as seen earlier committed by the Defendant was only occurred in the course of liquidation in an inevitable quantity as part of the deel hedging. It is insufficient to see that such assertion or assertion is acknowledged by sufficient evidence and logic to the extent that the recognition of the above elements of a crime is followed, and it is not acceptable without any counter-proof.

5. Conclusion

Therefore, the prosecutor's appeal is reasonable, and the judgment of the court of first instance is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

As stated in the summary of the facts charged in paragraph (1).

1. Statement of each court in the first instance and the trial of the defendant in part;

1. Each legal statement made by Nonindicted 8, Nonindicted 12, and Nonindicted 13 as witness of the first instance court

1. Legal statement of Nonindicted Party 14 as a witness of the political party;

1. Some of the interrogation records of the prosecution against the defendant and non-indicted 5

1. Part of each prosecutor's protocol on the defendant and non-indicted 5

1. Each prosecutor’s statement concerning Nonindicted 8, Nonindicted 11, Nonindicted 12, Nonindicted 6, Nonindicted 8, Nonindicted 15, and Nonindicted 16

1. Partial descriptions of the particulars of the defendant's preparation;

1. Some of the statements of Nonindicted 5

1. Each of the written answers and answers to the defendant and non-indicted 5

1. Each statement of Nonindicted 9, Nonindicted 10, and Nonindicted 17

1. He/she shall notify the matters of attention related to the entrustment, etc. of hedge transactions and public sale offered to him/her, pay attention related to the holding of market customs offices in the course of hedge transactions, etc., public notice of the Securities and Futures Exchange "Notification of Cautions related to the consignment of market orders, etc. at the time of termination of the market", the case of requesting participation in the Securities and Futures Exchange of Korea, the case of requesting participation in the circuit education at the time of termination of the market, the measures requested by the relevant agency, the case of implementing measures to strengthen the protection of investors, the guidance of the details of attention related to the termination of the market, the guidance of the fact related to the termination of the market of securities and futures, the guidance of attention related to the hedge transactions at the securities and futures exchange of securities and the short sale, the guidance of the fact related to the short sale price and the entrustment of the short sale price and the short sale, the plan for the comprehensive education

1. On April 15, 209, the details of Nonindicted Company 3’s shares during the period of 14:29-15:0, Nonindicted Company 3’s investment and sale of securities for 357 Els, ES 2’s profit and loss, Nonindicted Company 3’s investment and sale of securities for 4:30, Nonindicted Company 1’s investment and sale of securities for 4:5, Nonindicted Company 2’s investment and sale of securities for 7:5, Nonindicted Company 1’s investment and sale of securities for 7:5, Nonindicted Company 1’s investment and sale of securities for 7:5, Nonindicted Company 2’s investment and sale of securities for 1:5, Nonindicted Company 3’s investment and sale of securities for 7:5, Nonindicted Company 1’s investment and sale of securities for 7:5, Nonindicted Company 1’s investment and management guidelines for 5, Nonindicted Company 2’s investment and supervision of Els’s investment and sale of securities for 1.5.

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

Articles 443(1)6 and 176(3)(b) of the former Financial Investment Services and Capital Markets Act (amended by Act No. 11845, May 28, 2013): Selection of a fine.

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Market price manipulation is a crime that undermines the fairness, trust, and efficiency of the capital market by hindering the fair price formation due to supply and demand, thereby adversely affecting ordinary customers, thereby harming the fairness, trust, and efficiency of the capital market, and thus harming the foundation of the capital market economic order. In particular, it is more likely that the asset management officer of the securities company that issued securities to general investors and received a large amount of funds has committed such an act of low-marketing that is contrary to the interests of investors and detrimental to the social and economic order. Furthermore, the crime is irrelevant to the crime in that the amount of the volume mobilizedd to the crime in this case (the amount of KRW 8.3 billion in the ordered volume, KRW 7.5 billion in the concluded volume) is considerable, and ultimately, the crime in this case is not likely to be committed in that investors have a major risk, such as principal loss, etc. that may depend on the market situation by the next evaluation date without immediately losing the opportunity to receive the principal and agreed profits.

However, it is clear that the Defendant has no criminal history and has a social relation with his family and workplace, and in the instant case, only the Defendant was indicted as a direct offender, but the Defendant did not commit the instant crime at a personal level, taking into account all the circumstances such as the background, motive, method, mode, role and profit, and degree of the instant crime based on the principle of responsibility, and taking into account the situation of withdrawal or the fact that the Defendant prepared more specific guidelines and actively supervised the hedge transaction after the instant case, the Defendant appears to have the possibility of recidivism as well as the possibility of occurrence of similar cases.

Based on these points, the defendant's age, character and conduct, environment, and all other conditions of sentencing shall be determined as the disposition of the defendant.

Judges Yellow-ju (Presiding Judge)

1) Each share in the indictment: A significant amount of trading and appraised loss in the hedge trading of the shares of Nonindicted Co. 3 and the shares of Nonindicted Co. 2, which are underlying assets, during the period from April 2008 to June 2009, for which the instant ES was established (the loss of the shares of Nonindicted Co. 3: 6.127 billion won, and the loss of the shares of Nonindicted Co. 2: the loss of the shares of Nonindicted Co. 2: 2.49 billion won).

2) Each note of indictment: around 09:22:39 on the same day, Nonindicted 5 viewed the Defendant as Messenger, which reads that “I will sell too rapidly to Nonindicted 3 even if I see that I would be able to do so.”

3) The Hague method in which risks are maintained by continuously adjusting the assets through the sale and purchase of the underlying assets in accordance with changes in the prices of the underlying assets using the deel surface.

4) On this basis, the Defendant asserted that the overall profits from the issuance of the Els (or part of the debt) based on the underlying assets of Nonindicted Company 3 and Nonindicted Company 2 were KRW 7.9 billion, and KRW 2.3 billion, and that the appropriation of the profits therefrom was in the state of making profits rather than losses. However, this is calculated by 1/2 of the total profits from the issuance of the Els including Nonindicted Company 3’s shares, and 1/2 of the total profits from the issuance of the Els including Nonindicted Company 2’s shares, and 1/2 of the total profits from the issuance of the Els including Nonindicted Company 3’s shares, and 2-stocks were included, and 1/2 of the total profits from the Els’s underlying assets consisting of 2-stocks, and 3. The calculation of profits from the Els’s underlying assets consisting of two different underlying assets and losses, and it is difficult to view that the Els’s profits and losses were actually calculated by 2.7 billion won or more (2.7 billion won).

5) In the theoretical aspect of the deel hedging, as a result, when the price of underlying assets falls, there is a possibility of a fluctuation in the value of stocks due to a decline in the deel value when the price of stocks is purchased and the price of stocks increases, so such a fluctuation in the value of the stocks may occur in the actual hedge transaction. Therefore, such a fluctuation in the value of profits can be a considerable expectation source other than the profits from the ES issuance fees for the ES issuer.

(6) As seen earlier on the day of the intermediate evaluation of this case, the Defendant purchased shares at the beginning of the first half of the year when the share price has fallen. In light of this, the Defendant also knew that the transaction of marginal profits by using the fluctuation in the course of the hedge trading was conducted.

7) According to the testimony of Nonindicted 8, the Financial Supervisory Service is deemed to have reported to the level of accusation or measure in the event that inside the investigation of unfair trade is at least 5 per cent of the normal premium rate.

8) The Defendant stated that the Defendant ordered the HTS to open a separate HTS without regard to expected conclusions and expected conclusions, and only three prices from the system was reported (see, e.g., Investigation Records 219 pages). However, in order for simultaneous heading to determine the volume and price to be ordered during a time period, due to the nature of a single provisional sale method, it is possible to conduct a transaction only when anticipated conclusions and anticipated conclusions are confirmed, and the Defendant’s statement that the Defendant, as a specialized radar, did not appear to have failed to do so while holding a sale order amounting to approximately KRW 8.3 billion.3 billion, is difficult to believe.

9) The sales volume of Nonindicted Company 1’s sales volume of KRW 20,000 was submitted to Nonindicted Company 1’s sales volume of KRW 96,800.

10) If the closing price was anticipated to be KRW 96,00, a sale order should have been placed at a selling price of KRW 95,900 for a certain sale order. However, in the case of selling orders of KRW 95,900, if the closing price is closed to KRW 95,900, the sales order quantity of KRW 95,900 would have not been reduced in full, and there is a possibility that the sales order may remain. In other words, the sales order of KRW 95,800 is a 95,800,000 lower in total, which would have been expected to be 95,900,000, regardless of the expected conclusion price of KRW 96,00.

Note 11) formally early termination of the Els, and the difference between the early termination amount and the above KRW 124 million was paid to Nonindicted 6 by the executives as above.

Note 12) As to “immediately”, the Defendant: (a) calculated the hourly value of the stored data in the system as “0” on the basis of 14:30, the end of the interim evaluation date, 30 minutes prior to the interim evaluation date; (b) on the other hand, the Defendant stated that the time was required for calculating the dete value of the stored data in the system, due to the most close time at the end of the closing time, and that the closing time was required for calculating the dete value. However, even if the authenticity of the statement is set aside, in reality, inasmuch as the radar is required to make an actual sale by putting a certain point at a certain point, it seems basically to be a matter of choice and decision-making of the traler.

Note 13) According to scholars, unlike in the case of options that do not have an influence that cannot be distributed to profit structure, it is also deemed that there is no influence and there is no influence and there is no influence and there is no influence value.

14) In relation to this, in the case of selling 50,00 shares at the time to the “market price”, the Defendant stated that the market did not place an order for sale since it could not sell and purchase other ESs whose underlying assets are the 50,000 shares in the case of selling them to the “market price.” However, in light of the above statement, there is room for doubt as to whether there is a need to actually liquidate the theoretical hedge volume based on one ls because there is offset effect under the environment that comprehensively manages the hedge of the ESS.