Defendant

Both parties

Clinical Paths

Law Firm Jeong, Attorneys Lee Young-soo et al.

Seoul Central District Court Decision 2009Gohap211 Decided July 30, 2009

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment with prison labor for a period of two years and six months and a fine of six hundred million won.

When the defendant fails to pay the above fine, the defendant shall be confined in the old house for the period calculated by converting the amount of two million won into one day.

The number of detention days prior to the pronouncement of this judgment shall be included in the above imprisonment.

However, the execution of the above imprisonment shall be suspended for a period of four years from the date this judgment becomes final and conclusive.

The defendant shall be ordered to provide community service for 120 hours.

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

1. Summary of grounds for appeal;

A. Defendant

In light of all kinds of sentencing conditions, the sentence of imprisonment (one year and six months) by the court below is too unreasonable.

(b) Prosecutors;

In light of the legislative intent of the former Securities and Exchange Act (amended by Act No. 8635, Aug. 3, 2007; hereinafter the same) and the legal system of equity under Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, it is reasonable to view that profits accrued from the Defendant’s trading of stocks through price manipulation, etc. using another account exclusively managed and controlled by the Defendant constituted profits that the Defendant acquired regardless of who is the party to whom the profits accrued, but the lower court determined that the profits accrued to the Defendant, who is not the accomplice, cannot be included in the profits accrued from the violation of the former Securities and Exchange Act, and that the amount exceeding KRW 1,169,706 among the profits accrued from the Defendant’s trading of stocks of Nonindicted Co. 14 and the amount exceeding KRW 2,008,043,112 of the profits accrued from the manipulation of market price on the stocks of Nonindicted Co. 15, which affected the conclusion of the judgment.

In addition, in light of all the sentencing conditions, the sentence imposed by the court below against the defendant is too unfasible and unfair (On the other hand, from the written opinion dated November 20, 2009, the prosecutor additionally states a mistake of fact to the effect that the benefit accrued from the ○○ Securities Account in the name of Nonindicted Company 9 among the unfair benefit arising from the manipulation of market prices by Nonindicted Company 15, and the benefit accrued from the ○○ Securities Account in the name of Nonindicted Company 14, among the unfair benefit arising from the manipulation of market prices by Nonindicted Company 14, should be recognized as the amount acquired by the defendant. However, the prosecutor's assertion is not a legitimate reason for appeal as it was presented after the deadline for submitting the

2. Determination:

A. Judgment on the misapprehension of the legal principle by the prosecutor

(1) Summary of the facts charged in this case

㈎ 공소외 14 주식회사 주식 시세조종으로 인한 증권거래법위반의 점

From January 31, 2006 to April 21, 2006, the Defendant acquired unfair profits equivalent to KRW 1,040,722,742 in total amount of the offense by making a transaction of the stocks of Nonindicted Co. 14 with the intention of making a mistake in the trading of the stocks of Nonindicted Co. 14, which are securities listed on the KOSDAQ, or causing other persons to make a wrong judgment, and by making a transaction of the stocks of Nonindicted Co. 14, with the intention to attract the trading to the KOSDAQ market, or by making a mistake in the trading of the stocks of Nonindicted Co. 14, for the purpose of inducing another person to make a false judgment.

㈏ 공소외 15 주식회사 주식 시세조종으로 인한 증권거래법위반의 점

From October 9, 2006 to October 10, 2007, the Defendant acquired unfair profits equivalent to the amount of KRW 5,855,451,769 (the total amount of the offense is KRW 5,967,39,570,570, which is written indictment) by engaging in the trading of stocks of Nonindicted Co. 15, a securities listed on the KOSDAQ, in order to make a mistake in the trading of stocks of Nonindicted Co. 15, a securities listed on the KOSDAQ, or to let another person make a wrong judgment, and by engaging in the trading of stocks of Nonindicted Co. 15, a mistake in the trading of the stocks of Nonindicted Co. 15, a securities listed on the KOSDAQ, or by causing another person to make a wrong judgment.

(2) Summary of the judgment of the court below

As stated in each of the facts charged above, the Defendant is recognized as having committed an act of conspiracy, trade, change in the market price, etc. with respect to the shares of Nonindicted Co. 14 and Nonindicted Co. 15, but in the case of Nonindicted Co. 14, the profits earned by the Defendant is recognized as only the profits of KRW 2,008,043,112 among the profits accrued from the accounts in the name of Nonindicted Co. 18, 16, 169,706, and the profits accrued from the accounts in the name of Nonindicted Co. 17 among the unfair profits by market manipulation account (hereinafter “Nonindicted Co. 14”) in the case of Nonindicted Co. 16, 16, 17, and the profits accrued from the account in the name of Nonindicted Co. 15 (Nonindicted Co. 15) in the attached Form of the lower judgment.

On the other hand, in the case of non-indicted 14 corporation, each benefit of the remaining non-indicted 1, 2, 3, 4, 5, 6, 7, and 8 from the account in the name of the above violation (=1,040, 722, 742 won 1,169,706 won) and in the case of non-indicted 15 corporation, the remaining non-indicted 13, 1, 9, 7, 12, 8, 10, 10, and 11 (=5,85, 45, 451, 769 won) is non-indicted 2,08,04, 043,112 won, and there is no evidence to prove that the defendant was not guilty of the above violation of the Securities and Exchange Act, but in the case of non-indicted 16,178,1761,616 of the total account of non-indicted 14 in the indictment of this case,

(3) Judgment of the court below

㈎ ‘위반행위로 얻은 이익’의 해석

The term "profit from a violation" under the proviso of Article 207-2 (1) and Article 207-2 (2) and Article 214 of the former Securities and Exchange Act refers to the profit earned by the violator. On the other hand, where multiple persons jointly commit an unfair trade such as market manipulation, the profit accrued therefrom refers to the profit acquired by the whole accomplice who participated in the crime, and barring any special circumstance, the profit accrued to others, other than the accomplice, shall not be readily determined as "profit accrued from the violation."

㈏ 피고인이 단지 명의인의 자금을 관리하기만 한 계좌

From the above point of view, Nonindicted 16, 17, and 18 included in the profits earned from the violation of the original judgment among the nominal holders of the securities account, in the case of Nonindicted 11 account holder ( Nonindicted 2, 3, 4, 5, 6, 7, 8, 9, 10, 11) excluding Nonindicted 13, 12 who managed the Defendant’s funds together with the nominal holders, the evidence duly adopted and examined at the original judgment and each legal statement of Nonindicted 8, and 19, the fact that the Defendant managed the above securities account under the name of the nominal holders such as the above Nonindicted 1, etc., and used the above securities account to the account holder in violation of the 11 books, such as trading and market price fluctuation. However, it is difficult to readily conclude that the Defendant, solely on the basis of the above evidence, was able to use the above securities account’s profits from the account holder’s account transfer to the said account holder or personal identification number, and that the Defendant did not have any profits from the above account holder’s account transfer.

In addition, there is no other evidence to prove that the defendant has gained profits from the account in the above non-indicted 1 and other 11 accounts due to the violation of market price manipulation, etc. like the facts charged.

㈐ 피고인이 피고인과 명의인의 자금을 함께 관리한 계좌

According to the evidence duly adopted and examined by the court below and the court below, the defendant used the securities account received from the non-indicted 12 and 13 in the process of manipulating the shares of the non-indicted 15 corporation; the non-indicted 12 and 13 delivered the account to the defendant; the defendant was also in charge of managing the funds; the amount of KRW 200 million out of the total amount of funds in the case of the non-indicted 12; the remaining amount of KRW 340 million in the case of the non-indicted 13 accounts is the funds of the defendant; about KRW 180 million in the total amount of funds in the non-indicted 13 accounts, KRW 20 million in the non-indicted 13; the remaining amount of KRW 20 million in the non-indicted 13,00,000 in the non-indicted 13,000 in the non-indicted 12 and 13; and the part of the non-indicted 13,000 in the non-indicted 15.

그런데, 당심에서 검사에게 소위 혼용계좌에 대하여 혼재액수와 이득액 및 그 계산방식 등에 대하여 밝힐 것을 석명하였으나 검사가 이에 대하여 답변하지 않았는데다가, 위 증거들에 의하여 인정되는 다음과 같은 사정, 즉 ① 공소외 12· 13은 친분관계에 의하여 피고인에게 자금 관리를 일임하였기 때문에 이후 이익을 정산하기로만 하였을 뿐 나아가 피고인과 사이에 일임매매로 인한 이익분배 기준 등에 관하여 구체적인 약정을 하지는 않았던 것으로 보이는 점, ② 피고인은 위 공소외 12· 13 명의 계좌를 통하여 공소외 15 주식회사 주식뿐만 아니라 ■■■, △△△ 등 다른 여러 종목의 주식들을 함께 거래했던 점, ③ 피고인과 공소외 12· 13은 공소외 15 주식회사 주식거래로 인하여 얻은 단기차익을 그때그때 인출하거나 정산하지 아니한 점, ④ 특히, 공소외 12의 경우 피고인에게 맡기기 전에 이미 현대증권 계좌를 개설하여 주식거래를 하다가 피고인에게 넘겨주게 되었는데, 공소외 12는 수시로 위 계좌에서 입출금을 하였고, 피고인도 공소외 12로부터 필요할 때마다 출금에 필요한 카드와 도장을 공소외 12로부터 받아 몇 차례 인출을 해 가기도 한 점 등을 종합해 보면, 직권으로라도 위 공소외 12· 13 명의의 계좌에서 공소외 15 주식회사 주식거래와 관련하여 발생한 이익 중 공소외 12· 13에게 귀속되는 부분과 피고인에게 귀속되는 부분을 각 구분하여 특정하는 것이 사실상 불가능하므로, 결국 피고인에게 유리하게 이를 적용할 수밖에 없어 피고인이 위 각 혼용계좌에서 공소외 15 주식회사 주식 시세조종으로 인하여 얻은 이익에 관하여 이를 인정할 증거가 없다고 할 것이다.

㈑ 따라서, 공소외 14 주식회사의 경우 위 공소외 1 등 8명 명의의 계좌에서 발생한 1,039,553,036원과 공소외 15 주식회사의 경우 공소외 13 등 8명 명의의 계좌에서 발생한 3,847,408,657원의 각 이익은 피고인의 위 각 위반행위로 얻은 이익이라고 인정할 증거가 없으므로, 결국 이 사건 공소사실 중 피고인의 통정매매, 매매거래성황 또는 시세변동 등의 위반행위로 앞서 인정한 공소외 14 주식회사와 관련한 이익 합계 1,169,706원을 넘어서는 부분과 공소외 15 주식회사와 관련한 이익 합계 2,008,043,112원을 넘어서는 부분은 각 범죄의 증명이 없는 경우에 해당한다. 따라서 원심의 이와 같은 취지의 판단은 정당하고, 거기에 검사가 주장하는 바와 같은 법리오해의 위법은 없다.

B. Determination on the grounds of unfair sentencing by the prosecutor and the defendant

Although all of the crimes of this case are recognized by the defendant, there is no past history of punishment of imprisonment without prison labor or heavier, and there is no lot of favorable circumstances such as the defendant's personal gain through the manipulation of market prices. However, the defendant's crime of this case is deemed to be unfair in light of the defendant's age, career, personality, and environment as well as the fact that the fairness of securities transactions and trust in the securities market of many investors is infringed by professional and planned stock price manipulation, thereby impairing the foundation of the order of the capital market. The defendant has suffered unfair profit exceeding 2 billion won in a short period by using the funds of KRW 00 million and the securities account of several hundreds of cash and making orders for price manipulation over a hundreds of time. The defendant, who escaped from the crime of this case, was arrested for one year in a high-class high-class mixed apartment after the escape, and was arrested, and the defendant's property punishment can be imposed concurrently other than the punishment due to the nature of the securities crime, and the defendant's age, career, and environment.

Therefore, the defendant and prosecutor's argument of unfair sentencing is accepted within the above limits and new punishment is to be determined.

3. Conclusion

Therefore, the appeal by the defendant and the prosecutor is with merit, so the judgment of the court below (including the part of innocence) is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and the following is again decided after pleading.

The summary of the facts charged and the evidence against the defendant recognized by this court is as follows, with the exception of changing "the testimony of Non-Indicted 12 of the witness of the first instance court" in the summary of the evidence into "the testimony of Non-Indicted 12 of the witness of the first instance court, Non-Indicted 8 and Non-Indicted 19 of the witness of the trial court," and therefore, it is identical to the corresponding column of the judgment of the court below.

1. Article applicable to criminal facts;

Article 41(1) of the Addenda of the Financial Investment Services and Capital Markets Act (amended by Act No. 8635, Aug. 3, 2007); Article 207-2(1)2, Article 188-4(1)3, Article 188-4(2)1, Article 214 of the former Securities and Exchange Act (amended by Act No. 8635, Aug. 3, 2007); Article 207-2(1)2, (2)2, Article 188-4(1)3, and (2)1, and Article 214 of the former Securities and Exchange Act (amended by Act No. 15 of the same Act (amended by Act No. 8635), Article 207-2(1)3, and (2)1, and Article 214 of the former Securities and Exchange Act (amended by Act No. 15)

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2 and 3, and Article 50 (Aggravation of Punishment to Imprisonment with prison labor as provided for in the Securities and Exchange Act due to the manipulation of stock prices of Non-Indicted 15 Stock Companies with heavier punishment) of the Criminal Act, and the concurrent punishment of fines to be imposed shall be aggravated to the extent that the fine prescribed by the Securities and Exchange Act due to the manipulation of stock prices of Non-Indicted 15 Stock Companies with heavier punishment is added to the total amount of

1. Discretionary mitigation;

Articles 53, 55(1)3, and 6 of the Criminal Act (The above favorable circumstances)

1. Invitation of a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Calculation of days of detention;

Article 57 of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act (Article 62(1)(Article 62(1) of the Criminal Act regarding imprisonment for a period of one year, taking into account the circumstances, etc. that the defendant has already completed custody for a period of one year and

1. Social service order;

Article 62-2 of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

1. Summary of this part of the facts charged

The Defendant acquired each unfair profit in the amount of KRW 2,008,043,112 exceeding KRW 3,847,408,657, and KRW 657, which was found guilty due to the manipulation of market price as a result of the fictitious sale, etc. of the shares of Nonindicted Co. 14 through the fictitious sale of the shares of Nonindicted Co. 14, as well as KRW 1,039,553,036, and KRW 2,008,043,112.

2. Determination:

The part of the facts charged above constitutes a case where there is no proof of crime as seen in Article 2-A. 3 of the above facts charged, and thus, not guilty should be pronounced pursuant to the latter part of Article 325 of the Criminal Procedure Act, but as long as it is found guilty of each violation of the Securities and Exchange Act as stated in each of such comprehensive crimes, it

It is so decided as per Disposition for the above reasons.

Judges Lee Jong-tae (Presiding Judge)