209No1422 A. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation)

(b) Violation of the Act on the Aggravated Punishment;

(c) Violation of the Securities and Exchange Act;

1. A. B. c. E. ○○, the president of the former Samsung Group

Yongsan-gu Seoul Metropolitan Government

Gyeong-nam, Gyeong-gun, Gyeong-gun

2. (a) (b) and Samsung Electronic Advisor;

Gangnam-gu Seoul residential

[Reference domicile]

3. A. (b) Kim ○ (1 AI - IIII), Samsung Electronic Counseling Service;

Residence Nam-si

KRD THE at the time of the original domicile

4. A. Kim (1) and the former Samsung SDR’s representative director;

Seoul Gwangjin-gu

Seoul Reference domicile Jongno-gu

5. A. GO. (II 1-TAL) and the head of Samsung SDR Finance Headquarters;

Housing Sung-nam City

Reference domicile Jongno-gu Seoul.

Defendants and Special Prosecutor (In all the Defendants)

Mabroes

Prostitution, lusium, lusium, rearctability

Attorney Cho Jae-su, Lee In-seop, Cho Jong-ok, Kim In-seop (for all the Defendants),

Seoul Central District Court Decision 2008Gohap366 Decided July 16, 2008

Seoul High Court Decision 2008No1841 Decided October 10, 2008

Supreme Court Decision 2008Do9436 Decided May 29, 2009

August 14, 2009

Text

1. Of the judgment below, the part of the judgment of the court below on the defendant Lee ○ and Kim ○ is reversed as to the guilty part, the acquitted part on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of Trust) related to Samsung SDR Co., Ltd., the part on the defendant's violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of Trust) related to bonds with warrants, the part on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (tax) as of May 31, 2003 and May 31, 2004, and the part on the acquittal, Kim and Park ○ as to the violation of the Act on the Aggravated Punishment,

2. Defendant ○○○’s imprisonment with prison labor for three years and fines of KRW 10 billion, and Defendant ○’s violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) concerning Samsung SPD Co., Ltd. and bonds with warrants

A person who violates the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) on May 31, 2003 and May 31, 2004 shall be punished by imprisonment for a period of two years and six months, by imprisonment for a period of three years, by a person who is sentenced to imprisonment for a period of three years, by a person who is sentenced to imprisonment for a period of three years, by Kim, and by imprisonment for a period of two years and six months.

3. In a case where ○○○ does not pay the above fine, the above Defendant shall be confined in a workhouse for the period calculated by converting the amount of KRW 110 million into one day.

4. From the date of the final judgment of this case, with respect to the defendant Lee ○, the execution of each of the above punishment shall be suspended for a period of five years for five years for the above punishment, the defendant Lee ○, and the defendant Kim ○, for four years for the above punishment.

5. The Defendant’s exemption from each fine on this and Kim ○.

6. To issue an order for provisional payment of an amount equivalent to the above fine to ○○○○.

1. The progress of the case and the scope of the trial of the party;

A. Summary of the facts charged

The facts charged of this case are as follows: ① Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation in Trust) regarding the issuance of convertible bonds by Defendant Lee, Lee, Lee, and Kim, and the issuance of convertible bonds; ② Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation in Trust) concerning the issuance of convertible bonds by Defendant Lee ○, Lee, and Kim ○, etc.; ② Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) concerning the issuance of bonds with warrants by the Defendants; ③ Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax)

(4) The violation of the Securities and Exchange Act by the defendant is composed of ○○.

B. Summary of the judgment below

Of the facts charged in the instant case, the lower court acquitted Defendant 1 on the charge of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) in relation to the issuance of the Hebland convertible bonds by Defendant Lee○, this, and Kim○, and found the Defendants not guilty on the charges of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) in relation to the issuance of SDS convertible bonds. ② The Defendants acquitted on the charge of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) in relation to the issuance of SDS bonds with warrants; ③ Defendant Lee○, Lee 1, and Kim○, respectively, on May 31, 2001; and on May 31, 2002, on each of the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) on the Aggravated Punishment, etc. of Specific Crimes (tax). The lower court acquitted the Defendants on the part corresponding to the transfer income accruing from transfer on or before December 31, 1998.

I, May 31, 2005, May 31, 2006, May 31, 2006, and May 31, 2007, convicted of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) and convicted of violation of the Securities and Exchange Act by ○○.

On the other hand, the defendant Lee ○, Lee ○, Lee ○, and Kim ○ filed an appeal against the guilty portion, and the special prosecutor filed an appeal against all the defendants as to the acquittal portion, acquittal portion, and acquittal portion of the reasoning. The summary of the judgment before the remand

Before remanding, the lower court dismissed the appeal by the special prosecutor on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation in Trust) regarding the issuance of the Defendant Lee○○, Lee ○, and Kim○-○'s Illand convertible bonds. ② The Defendants reversed the Defendants' violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation in Trust) in relation to the issuance of SDS bonds with warrants and acquitted them ex officio. ③ Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) by the Defendant Lee

Of the grounds of appeal as to the issue of unfair sentencing, the part of the judgment of the court below convicting Defendant this and Kim○○ (including the part of acquittal on the grounds) was reversed, and the above Defendants exempted the fine and maintained the imprisonment without prison labor as it is. ④ Defendant Lee○○’s appeal and Defendant’s non-guilty part on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) regarding the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) regarding the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation), Defendant Lee○○, this part of the judgment of the court below’s rejection of the appeal by the special prosecutor on the guilty part of Defendant Lee○, and this part on the

On the other hand, only the special prosecutor who was acquitted (including the acquittal of the reasons) filed an appeal against the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) in relation to the issuance of the Bertland convertible bonds by Kim○, the Defendants filed an appeal against the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) in relation to the issuance of SDS convertible bonds, and the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes by Lee ○, this case, and Kim○-○.

D. Summary of the judgment remanded

The Supreme Court, before remanding, dismissed the appeal by the special prosecutor on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) with respect to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of Trust) with respect to the defendant Lee ○, Lee ○, and Kim ○, and the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of Trust) with respect to the issuance of SDS bonds with warrants, and reversed this part of the appeal by the special prosecutor on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of Trust) by the defendant Lee ○, Lee ○, Lee 1, and Kim ○, except for the part that was reversed for the following reasons, rejected the special prosecutor's ground of appeal on the non-guilty portion of the Reasons for appeal by the special prosecutor on the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes with respect to the issuance of SDS bonds with warrants.

5. Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (taxes) by the person who took 31. (1), May 31, 2006, and May 31, 2007;

The guilty part (including the acquittal part of the reason) was confirmed.

As above, the Supreme Court reversed the defendants' violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of Trust) related to the issuance of SDR bonds with warrant before remand and reversed the guilty part of the defendant Lee○-○ and Kim○, the guilty part of the defendant's objection, and the guilty part of the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (including the part of acquittal for the pertinent reason) on May 31, 2004, and remanded this part of the case to this court (including the part of acquittal for the pertinent reason), and remanded this part of the case to this court (as to the defendant's this case, the judgment of the court prior to remand is about May 5, 2003).

31. A single community service order was rendered without distinguishing the part concerning the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) and the part concerning the violation of the Act on May 31, 2005, the person who committed May 31, 2006, the person who committed May 31, 2007, and the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) on May 31, 2007, but without distinguishing the part concerning the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax), but the judgment of remand did not mention the above explicitly.

5. As long as the defendant reversed the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) on his/her own on the Aggravated Punishment, etc. of Specific Crimes, it shall be interpreted that the single community service order has been returned by the judgment of remand.

(e) Scope of the party deliberation;

Therefore, the scope of the trial for the court is ① the defendants' violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of Trust) related to the issuance of SDS bonds with warrant, ② the guilty part (including the part on acquittal of the reason) of the defendants' violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) by Lee ○○, Kim○, and Kim○, and the guilty part (including the part on acquittal of the reason) of the defendants' violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) by May 31, 2003 and May 31, 2004, and ③ the violation of the Securities and Exchange Act by Lee ○○.

2. Summary of grounds for appeal;

A. The mistake of facts and legal scenarios as to the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) cannot be deemed to be the act of acquiring and transferring shares through the instant borrowed account on or after January 1, 1999, and the said Defendants did not have the intent to commit a crime of tax evasion. In particular, it is unclear whether capital gains tax liability should be established under the income tax law that was enforced at the time on the shares acquired and transferred after January 1, 1991 to December 31, 199, since it is unclear whether the capital gains tax liability should be established under the income tax law that was enforced at the time of the said act, the lower court committed an unlawful act by misunderstanding the relevant facts or by misunderstanding the legal principles on the crime of tax evasion, thereby adversely affecting the conclusion of the judgment (unfair sentencing 2).

In light of the sentencing conditions of the above defendants, the sentence imposed by the court below on the above defendants (e.g., five years of suspended sentence of imprisonment for three years, fine 10 billion won, fine 10 billion won, Defendant this case: the person on May 31, 2003 and on May 31, 2004, violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) by the person on May 31, 2004, the suspended sentence of two years and six years, fine 14 billion won, Defendant Kim ○: 5 years of suspended sentence of imprisonment for three years, and fine 74 billion won) are excessively unreasonable.

B. Special prosecutor (1) Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes by the special prosecutor (tax) by the defendant Lee ○○, this Act, and Kim ○○

- misunderstanding of facts or misunderstanding of legal principles

The court below held that there was only an act of receiving dividends, selling stocks, or closing an account with respect to the part of the capital gains tax on the borrowed stocks acquired before December 31, 1998, and held that it was not guilty on the ground that there was no active concealment without any deliberation and judgment as to the subsequent circumstances, is an unlawful act of mistake of facts by failing to exhaust all the necessary deliberation, and that there was an error of law by misunderstanding the legal principles as to "the fraudulent and other unlawful act". (2) The defendants' violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) concerning the issuance of SDR bonds with respect to the issuance of SDR bonds by the defendants.

The court below erred in misapprehending the legal principles regarding the method of calculating the market price of unlisted stocks and the amount of damages (profit) in breach of trust as follows, and thereby deeming that the amount of damages suffered by SDR due to the issuance of the instant bonds with warrants is more than 500 million won but not more than 5 billion won. As a result, the part of the facts charged premised on the violation of Article 3 (1) 1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes is not guilty. However, only Article 3 (1) 2 of the same Act is a problem, and even in this case, the court below erred in misapprehending the legal principles as to the actual cases of transaction, and thereby acquitted the statute of limitations.

① Although it is apparent that SDR’s share price of KRW 55,00 based on trading cases at the time of the issuance of the instant bonds with warrants is the price formed through normal transactions as it adequately reflects objective exchange values, the lower court committed an error of mistake and misapprehension of legal doctrine that the lower court did not regard 5,00 won as the market price at the time of the issuance of the instant bonds with warrants.

② In addition, the review and analysis of Samsung Securities ○○, the Samsung Securities Du○, etc., conducted by three parties, including both Du○○, to provide information on the stock transaction or market price of SDR on and before November 1998, the minimum purchase price was 23,500 won and 16,500 won after April 4, 1998. Thus, the court below erred by erroneous determination of facts, based on its determination on whether this is a market price, which reflects an objective exchange value, should calculate the amount of profit and amount of the breach of trust of this case. However, the court below rejected that 5,00 won per share, which is indicated in the transaction case of SDR’s stocks, cannot be recognized as an adequate transaction price, and the failure to review and determine whether it is a normal transaction price reflecting an objective exchange value.

(B) misunderstanding of facts, misunderstanding of legal principles, relating to the method of calculating the amount of loss (profit)

① Supplementary evaluation methods adopted by the court below are the supplementary evaluation methods under the Inheritance Tax and Gift Tax Act, which are the evaluation methods for calculating the amount of tax, in the case of inheritance, donation, etc. between the internal company or the special related parties, and it is not appropriate to apply to the issuance of bonds with warrants by a third party, but the court below applied this to the calculation of the market price of SDR stocks by misapprehending the legal principles

② Even though the amount of KRW 1.177 billion paid by △△△△△ in relation to the acquisition of the bonds with warrants is not deducted from the amount of damages (amount of profit) at the expense for the disposal of the preemptive rights of the bonds with warrants acquired by △△△△△△△△△, the lower court erred by misapprehending the legal doctrine on the method of calculating the amount of damages for breach of trust.

③ The lower court erred by misapprehending the legal doctrine on the method of calculating the amount of damages for breach of trust, even though the lower court did not deduct the amount of damages (amount of profit) from the amount of damages, due to the decline due to the dilution and dilution of the stock price due to the low-price issuance, and the difference in the value of the existing stocks of this △△△△ branch.

(2) Unreasonable sentencing on Defendant 00, foreign country, and Kim ○.

In light of the sentencing conditions of the above Defendants, the sentence imposed by the lower court against the above Defendants is unreasonable as it is excessively unfortunate.

3. 피고인 이ㅇㅇ, 이國國, 김ㅇㅇ 및 특별검사의 특정범죄가중처벌 등에 관한 법률위반 ( 조세 ) 의 점에 대한 사실오인 및 법리오해 주장에 관한 판단

Article 9 of the Punishment of Tax Evaders Act and Article 8 of the Act on the Aggravated Punishment, etc. of Specific Crimes provides for the purpose of evading taxes. 'Fraud and other unlawful acts' mean acts which are generally recognized as unlawful under social norms, i.e., fraudulent means to the extent that it is impossible or considerably difficult to impose and collect taxes, or other active acts, and cases where a tax return is not simply made without accompanying any other acts (see, e.g., Supreme Court Decisions 2004Do5649, Jun. 23, 2005; 2007Do577, Oct. 11, 2007). In addition, since the crime of evading taxes does not constitute intentional crimes, it is difficult for the defendant to have a duty to pay taxes for the purpose of evading taxes or evading taxes, and it is generally recognized that an act of evading taxes was committed under the name of another person, such as deposit account, or other unlawful acts, under the premise that it would have been committed under the name of another person.

Examining the evidence in light of the above legal principles, the court below's finding the Defendant guilty of the part concerning the evasion of capital gains tax on the stocks acquired after January 1, 1999, and found the Defendant not guilty of the part concerning the evasion of capital gains tax on the stocks acquired after December 31, 1998 on the grounds that it is just and acceptable, and there is no error of law by misunderstanding facts or by misunderstanding legal principles. Thus, this part of the claim by the Defendant ○○, ○○, Kim○ and the special prosecutor is without merit.

4. Determination on the grounds for appeal by the special prosecutor on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of Trust) regarding the issuance of Samsung SDR bonds by the Defendants

A. Facts charged

Defendant ○○ served as the president of Samsung Group, a large business group, from December 1, 1987, and from March 27, 1998 to March 18, 200, Defendant ○○ was working as the director of SDR’s corporate restructuring headquarters from March 27, 1998, and from March 18, 2006 to March 2006, Defendant ○ was serving as the head of the strategic planning office from March 18, 1997 to March 18, 200. Defendant ○○ was serving as SDR’s auditor from March 18, 1997 to March 18, 200; Defendant ○○ was working as the head of the financial affairs headquarters of Samsung Group from around April 1998 to around January 19, 204; Defendant 2, from around 2004 to the head of the SDR’s corporate restructuring headquarters; Defendant 2, from around 19,2008.

The Defendants conspired with each other to engage in the following activities in consecutive order. SDR was established on May 1, 1986 for the purpose of selling the aforementioned △△△△△△ integrated construction services, providing information processing and information communications services using computers, and providing telecommunications and Internet-related services, including software development and sale. As of December 31, 198, the total number of issued and outstanding shares was KRW 12,000,000 capital, and the shareholders were KRW 6,000,000,000, Samsung Electronic Co., Ltd. (29. 3%), Samsung Electrical Co., Ltd. (25. 3%), the employee stock ownership association (7% of November 3, 18), the △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△, which was an obvious need for its management performance within 15% of its own infrastructure.

Defendant ○○○ had Park around February 199 the above issuance plan for the bonds with warrants transferred to SDR, and he reported this plan to the Defendant, who is the head of the Restructuring Headquarters, and the Defendant reported this plan to the Defendant Lee ○, who was the head of the Restructuring Headquarters. The Defendant Lee ○, as well as the Defendant, reported the above plan to this effect. In addition, the Defendant Lee ○, along with the implementation of such plan, reported the plan to the Defendant Lee ○, and the Defendant as well as the

And Kim ○-do ordered the underwriter to join the bonds with warrants.

On the other hand, on February 199, after receiving a plan for the issuance of the instant privately placed bonds from the Samsung Group’s Financial Team at Samsung Group’s Financial Team, the Defendant Park Jong-○ instructed ○○○ and the representative director in charge of the financial team at the Samsung Group to immediately issue the privately placed bonds with warrants under the pretext of collecting data on the company’s financial situation and securing urgent facility funds. On February 1999, the Defendant reported the process of issuing the privately placed bonds with warrants to Defendant Kim 1, the representative director of the Samsung Group’s Financial Team at the time of issuing the privately placed bonds with warrants under the direction of the Financial Team at the Restructuring Headquarters.

On February 19, 199, according to the order of the defendant Park Jong-○, it is necessary for SDR to secure funds for the system management business (SM business) and funds for the repayment of CP and corporate bonds in advance. The amount of funds to be urgently secured by the end of February is at least 59 billion won, and 30 billion won among them is favorable for the issuance of privately placed bonds with warrant and the remaining 29 billion won to be procured through public offering (public offering). The "1/4 emergency financing plan" was prepared on February 20, 199, with the approval of ○○ and ○○○○○○○ on February 20, 199, and during this process, the amount of preemptive rights was requested to determine the price of exercise in accordance with the inheritance and gift Tax Act among accounting corporations on February 2, 199.

Unlike that Defendant Kim ○ and Kim ○ initially planned around February 22, 1999, the direction of Defendant Lee ○○ to see this and Kim ○do, and the direction was delivered in sequence to Defendant Park ○ and Kim Do around that city through Kim ○, Defendant Kim ○, and Defendant Park ○ on February 24, 199. He obtained approval from Defendant Park ○ on February 24, 199, on the following grounds: (a) on the basis of the direction of Defendant Park ○; (b) on February 23, 199, Defendant Park ○, a person who is expected to acquire the size of the issued bonds on February 23, 199; (c) it is necessary to separately issue the privately issued bonds with warrants of KRW 23 billion, in accordance with the size of the original funds, to separately issue the bonds with warrants of KRW 23 billion; and (d) on February 24, 199.

At the time of February 199, Defendant Kim Kim as the representative director of SDR, who has overall control over the management of the company, and Defendant Park Jong-○, as an executive officer in charge of the financial affairs of the company, was practically responsible for the financial affairs of the company. As such, in making a resolution on the issuance of the instant bonds with warrants and executing the issuance, Defendant Park Jong-○ had the duty to perform his duty of care as a good manager by strictly examining the substantive requirements, such as the necessity for the issuance of such bonds and the size and contents of the bonds to be issued, as prescribed by the articles of incorporation and statutes, as well as by making a reasonable decision.

At the time of February 1999, SDR has greatly improved profitability since 1998, and net income for that year has been 20 billion won for net income for that year, and 309.9% of the ordinary profit increase rate for the year, 47.7 billion won was reduced compared to the end of 1997, and the equity capital ratio was 14.

7% from 18.5% to 18.5%, the debt ratio was reduced from 578% to 439%, the ordinary profit ratio from the total capital was 1.7% to 2.08% of the electricity, the net profit ratio compared to the equity capital was 11.80% to 42.89% of the electricity, and the net profit ratio compared to the sales was 0.94% of the electricity, and the net profit ratio compared to the sales was 0.94% to 2.08%, and therefore, the financial situation of SDR at the time was very good, and there was a growing demand for ordinary amount of funds, but there was no need for urgent funds.

In addition, even if urgent financing is required, since the issuance of bonds with warrants has the same effect as the issuance of potential new stocks, Defendant Kim Jong-, and Park ○○, by setting the exercise price of preemptive rights at an appropriate price of the bonds, have the obligation to secure the capital available to the company through the issuance of such bonds to the maximum extent and to preserve the value of the company expressed by the company and its shareholders due to the dilution effect, the obligation to prevent losses incurred to the company and its shareholders due to the decline in the stock price due to the dilution effect, or the change in the governance structure, and the obligation to preserve the value of the company expressed by the share price. Therefore, in determining the exercise price of preemptive rights of SDS, if there are ordinary cases of transactions that properly reflect the objective exchange value of the company's stocks, the market price shall be deemed the market price and the value of the stocks shall be assessed by considering various evaluation methods generally accepted, and if there are no such cases of transactions, the reasonable exercise price of preemptive rights shall be assessed by comprehensively examining all the circumstances such as the purpose of issuance of the relevant bonds, the company's situation at the time of the

Nevertheless, Defendant Kim, Park Jong-young et al., did not consider whether the SDS requires an urgent fund in violation of their duties, and solely by having this case’s △△△△△△△△△△△△△△, Defendant, and Kim○○ take over the instant bonds at low prices, thereby reducing the shares of Samsung Electronic Co., Ltd. (29. 9%) to 23.6%, instead of the previous 14.8% to 25.4% from the previous 14.8% to the previous 25.4%, the first shareholder is the intention to become the first shareholder; between 00 to 09:00,000, Gangnam-gu Seoul Metropolitan Government’s head office on the 24th floor of the 199 building, and the board of directors for the issuance of the bonds with warrants held at the SDS conference room on February 25, 199.

A non-guaranteed bonds with warrants worth 23 billion won in face value shall be issued through private placement, and the interest rate shall be 8% per annum, and SDR bonds shall be 10 billion won in total (hereinafter referred to as SDR bonds). The redemption of bonds shall be made in lump sum at maturity, and the acquiring company shall be able to dispose of them separately from the bonds and preemptive rights. The exercising price of preemptive rights shall be 7,150 won in total as to the bonds. The exercising price of the preemptive rights shall be 7,150 won in registered common shares. The exercising period of the preemptive rights shall be from the date one year has elapsed after the issuance of the bonds until the date of redemption. The exercise period of the preemptive rights shall be from the date one year has passed after the issuance of the bonds. SDR issued the bonds with warrant worth 23 billion won in total face value on February 26, 200, from SDR on the same day, the total amount of the bonds acquired from SDR to 23 billion won in total, and the bonds and warrant certificates shall be 21.

The Samsung Securities Co., Ltd. (hereinafter only referred to as Samsung Securities), which was scheduled to be a transferee, sold to the Samsung Securities Co., Ltd., and the Samsung Securities transferred to this △△△△, Embi, this amount of money without any fee, to this day, and to this △△, Embi, Embii, Defendant, and Kim ○. The warrant certificates directly transferred Embi Securities to the 6th △△△△△, etc., in total, KRW 170 million

The directors present at the board of directors, including Defendant Kim Jong-○, etc., determined the exercise price of bonds with warrants as KRW 7,150 per share to the value assessed as of January 1, 199 according to the supplementary assessment method prescribed by the Inheritance Tax and Gift Tax Act, which was in force at the time, without considering all such factors as whether there was a normal transaction case of SDR's stocks in calculating SDR's stock price, and whether the price shown in the transaction case was appropriately reflected in the transaction case. The price of SDR was 50,00 won per share from February 10, 1999 to March 15, 199, up to 30,000 won per share, and 9,000 won per share from 10,000 to 30,000 won per share during the period of 9,000 won per 9,000 won per share until 9,000 won per share during the period of 9,000 won per share.

After all, ○○○○○○ and ○○○○○○○○○○ 5) was a director of each SDS, Defendant 2, 3, 5, and 5 [2, 30, 40, 50, 50, 50, 50, 500, 50, 50, 50, 50, 50, 50, 50, 50, 50, 60, 50, 500, 50, 500, 50, 50, 50, 50, 500, 60, 50, 500, 50, 500, 500, 500, 60, 50,000, 50,000, 60,000,000,000,000,000,00,00

B. The summary of the judgment below (1) It is difficult to view that the special prosecutor’s proof that the market price per share of SDR stocks at the time of issuance of the instant bonds with warrants reaches the level of 5,000 won has reached a reasonable doubt. (2) Therefore, based on the data stated in the stock appraisal report filed by the Samil Accounting Corporation, which was known and known by the management of SDR, the value of the stocks according to complementary methods under the Inheritance and Gift Tax Act shall be calculated, and the net value of the stocks is reasonable method of calculating the value of the stocks in accordance with the method of applying future profit values pursuant to Article 56(1)2 of the Enforcement Decree of the former Inheritance and Gift Tax Act to the extent of predictability of the

However, since the net asset value of the third-day accounting corporation's stock appraisal report is deemed to have been calculated appropriately pursuant to Article 5 of the former Enforcement Decree of the Act, according to the above report, the net asset value per share shall be 6,980 won. According to the above report, according to the above report, the net asset value per share shall be 6,980 won in 196, 697, 693 won in 1997, 1198, and 155 won in 25.7% in 1997, 1997, and 6% in 198, and the increase of net profit per share in the future of SDR shall be 25.7% in 25.7% in 25.6% in 66.1% in 196 in 200 in 200 in 190 in 290 in 200 in 290 in 200.

If the fair value of SDR stocks at the time of issuance of the instant bonds with warrants is equal to the above net asset value of KRW 6,980, net value of KRW 12,500 and net value of KRW 12,500,00 pursuant to the Inheritance and Gift Tax Act, the fair value of SDR stocks at the time of issuance of the instant bonds with warrants is the difference between the total value of the stocks after the issuance of new stocks and the amount of the new stocks paid for the issuance of the new stocks if new stocks are to be issued at the lower exercise price of KRW 9,740 and the lower exercise price of the new stocks. Accordingly, the existing stockholder suffers loss equivalent to the difference between the total value of the stocks before the issuance of the new stocks and the total value of the stocks dilution after the issuance of the new stocks. In this case, when the preemptive right is exercised, the value of the stocks is converted from the above fair value of KRW 9,740,000 and KRW 9,192,000 per share.

In addition, the effect of the dilution of the shares above is to reduce the value of the shares held by this △△△△, Isx, thisx, and this ▽▽▽▽△, by the same influence, to KRW 9,192 per share. Such effect naturally occurs from the exercise of the preemptive right to new shares, and thus, should be deducted from the amount of profit.

If the amount of profit is claimed according to the above method, this △△△△, etc. gains a total of 4,416,319,468 won.

(4) Ultimately, when the Defendants conspired with △△△△△△△, etc. to transfer SDR control with the funds written thereon, the Defendants issued and distribute the bonds with warrants to 7,150 won per share, which is considerably lower than 9,740 won, which is the minimum fair value of shares, thereby allowing △△△△△ to acquire 4,416,319,468 won, thereby obtaining property benefits equivalent to 4,468 won, and causing losses to SS equivalent to 5 billion won. As the damages (gains) arising from the instant breach of trust fall short of 5 billion won, there was no proof of a crime of violation of Article 3 (1) 1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, and since the statutory penalty was "three years or more", the statute of limitations for prosecution of this case was completed 249,79,79,79,79,79,700,700.

C. Determination on the assertion that the fair exercise price of preemptive rights should be determined according to the practices of transaction

The damages incurred by the company due to the issuance of the instant bonds with warrants at a remarkably low price shall be calculated based on the amount calculated by multiplying the difference between the fair exercising price of the instant bonds with warrants and the actual exercising price of the preemptive rights by the number of stocks to be issued according to the exercise price of the preemptive rights. In such cases, the fair exercising price of the preemptive rights refers to a reasonable price determined based on comprehensive consideration of various circumstances, including the financial structure of the company, business prospects and the market evaluation thereof, financial market conditions, possibility of acquiring new stocks, etc., along with a reasonable price that reflects the actual exercising price of the existing stocks with respect to the existing stocks (see Supreme Court Decision 2008Do9436, May 29, 200

However, the following circumstances, which are acknowledged by the legal statement of ○○○, the legal statement of ○○○○ of the witness of the trial prior to remand, the value of SDR over-the-counter trading, the transaction price trend by date, and the over-the-counter trading tax of SDR offered by Stockholm (StockholmK) are as follows:

2. SDR shares were traded to a certain extent within 60,00 won per share from 50,00 to 26. 5. However, even before the issuance of the instant bonds with warrants, it cannot be viewed as the price transacted within a considerable period of time. Rather, the over-the-counter trading price around November 1, 1998, which began to provide transaction tax through Stockholm, was 20,000 won, and as such, there is no clear evidence to deem that the market value of SDR shares was increased by 60 times more than 3 times, and as a result, it is difficult to readily conclude that SDR shares were traded in the 200-year market for 60-year market for 60-year market for 60-year market for 60-year market for 60-month market for 60-month market for 60-month market for 9% of the total number of outstanding stocks.

Therefore, the reason for appeal by the special prosecutor on this point is without merit.

D. Determination on the fair exercise price of SDR preemptive rights

As seen above, the fair exercising price of preemptive rights can not be seen as a fair exercising price of preemptive rights so long as the actual transaction price of SDR stocks cannot be seen as a fair exercising price of preemptive rights, the fair exercising price of preemptive rights refers to a reasonable price determined by comprehensively considering various circumstances, such as the financial structure, business prospects and the evaluation of the market for the company, the financial market situation, and the possibility of acquiring new stocks.

(1) Method of assessing unlisted stocks

There are several methods to assess unlisted stocks according to the purpose of the evaluation, and there are various methods to analyze the value of unlisted companies according to the factors to be considered in the analysis. In order to compute the value of unlisted stocks objectively and appropriately, various methods to assess unlisted stocks and methods to assess the value of unlisted stocks should be considered and determined reasonably in consideration of the actual status of application of the positive law.

The method of assessing the value of unlisted stocks is generally adopted. The Asset Value Act does not reflect the company's future value as a method of assessing the value of net assets (total assets - total liabilities), but it has the advantages that most assets are useful and objective in assessing the value of the company composed of tangible assets, but it is possible to assess the value of the company. The profit value method is a method of assessing the future net profit value of the company. It is a cash flow that discounts the value of cash flow that can be gained as a result of its business activities in the future with an earning rate of the company. It is necessary to estimate dividends over a considerable period of time according to the expected amount of dividends, and the method of calculating the value of the company's future stocks is the most reasonable method of assessing the value of the company's dividends, but it is difficult to assess the value of the company's future assets at a 0-year rate of interest rate of the company, which is similar to that of the company.

(2) Provisions on the assessment method of unlisted stocks

On the other hand, according to the appraisal method of non-listed stocks required by the law, the asset value law is followed in the valuation of non-listed stocks under the corporate accounting standards, and the inheritance and gift tax law is applied in principle to the market value at the time of inheritance and gift tax, and the value of assets and profits is a simple average value of assets and profits. The Securities and Exchange Act, which was enforced at the time of issuance of the instant bonds with warrants, and the regulations on the securities underwriting business, and the regulations on the execution of the bonds with warrants, provide for the analysis standards of securities for public disclosure. According to these regulations, the asset value and profits value are deemed to be the basic value of the stocks, taking an average value of the assets and profits value of the assets and profits value as an average value of the stocks for public disclosure (Article 4(2) of the Enforcement Rule of the same Act), and the profits value is determined by dividing them by capital exchange rate. (3) The method of calculating the fair exercise price of preemptive rights to

The provision on the assessment of inheritance tax and gift tax is merely a supplementary assessment method to determine the tax base of the scope acceptable by the tax authority, considering the equity and convenience of taxation, in imposing the taxation on the inheritance and gift of assets mainly on the premise of inheritance and donation between relatives. Considering the characteristics of the assessment conducted for the purpose of imposing the tax from the standpoint of the tax payer, it is not inevitable to interpret the very reasonable and strict standard due to the characteristics of the assessment conducted for the purpose of imposing the tax from the standpoint of the tax payer, it is not reasonable to adopt the method to assess the exercise price of the preemptive right when issuing the instant bonds with warrants to increase the maximum capital at the minimum cost.

On the other hand, the provision on the securities underwriting business provides that a company intending to acquire stocks or non-guaranteed bonds for public offering of new or non-guaranteed bonds for public offering of new or non-guaranteed bonds of the Association shall analyze securities (Article 16). While the provision on the securities underwriting business and the enforcement rule first apply to the analysis of securities in acquiring stocks or non-guaranteed bonds for public offering of new or non-guaranteed bonds of the Association-registered corporation, the evaluation of stocks at the time of public offering of new or non-guaranteed bonds and the exercise price of preemptive rights at the time of issuance of third party-registered bonds are similar in that it expands capital to the general public, other than existing shareholders of the company, and in particular, the above provision and enforcement rules apply mutatis mutandis to the case where a listed company acquires stocks or non-guaranteed bonds for public offering of new or non-guaranteed bonds for public offering of new or outstanding stocks, the amendment of the enforcement rule of the Securities and Exchange-registered bonds in light of the purpose of the fair evaluation of new or non-guaranteed bonds (Seoul High Court Decision 2004Nu26798).

Furthermore, according to the regulations on the securities underwriting business and the evaluation methods by the detailed enforcement rules (the regulations on the securities underwriting business that were applied at the time of issuance of the instant SDR bonds and the detailed enforcement rules are as shown in the attached Form), the intrinsic value of ordinary stocks is assessed by adding weight to the profit value based on the weighted average value calculated on January 5 of each of the asset value and profit value to 1:00,00,000,000,0000 won.

6.9. Meanwhile, the above provision and the purport of the enforcement rule are likely to infringe on the interests of the general investors that correspond to the public offering in the event of public offering of securities at a high price. Thus, it is enacted to regulate the public offering, and thus, it is reasonable to evaluate the fair exercise price of preemptive rights for the stocks of this case according to the above securities acquisition business regulations and the enforcement rules.

Therefore, the reason for appeal by the special prosecutor that the calculation of the value of shares by the supplementary assessment method stipulated in the Inheritance Tax and Gift Tax Act is improper is justified. (4) The reason for appeal by the special prosecutor is reasonable.

(1) According to the stock evaluation report and the appraisal report of Korea-U.S. accounting corporation, the current assets as of January 1, 1999 are KRW 500, 266, 892, 145, and the liabilities as of January 1, 199, KRW 407, 541, 852, and 3333. The net assets are KRW 92,725, 039, and KRW 812.

② The Defendants asserts that the deferred assets on the balance sheet of 198 shall be deducted from the total assets amount of KRW 10,779, 576, 059 (the 7,236, 207 won for the issuance of new shares, KRW 184, 181, 906 won for the issuance of new shares, KRW 6,09, 458, 169 won for research and development expenses, KRW 6,099, KRW 458, 169, and KRW 4,88, 69, and 777 for the exchange rate stopping).

The deferred assets are originally cost, but they are the burden after the next period for the precision of the calculation of the profit and loss during the period of time. The assets on the balance sheet are appropriated in the assets on the balance sheet and distributed for each period after the next period, and are subdivided into business start-up cost, opening cost, issuance cost of new stocks, bond issuance cost, research and development cost, etc.

First, in relation to the issue cost of new stocks and the issue cost of new stocks, etc., there is no opposing opinion as to whether the cost of raising the capital is real value as assets. However, in light of the accounting practice case that treats the issue cost and the issue cost as deferred assets in order to calculate it after the next anniversary without examining the real value, the fact that such items are stated in the balance sheet cannot be deemed as having real value, and it is reasonable to view that the issue cost of new stocks and the issue cost of new bonds are treated as the deferred assets item in the accounting and technological way to be appropriated for the future cost, and it is reasonable to treat the defendants as having no real value in favor of the defendants in case of unclear whether they are real value.

Next, in the case of research and development expenses items, SDR is a company subject to audit by an external auditor. An external auditor is not able to accept the Defendants’ assertion that there is no real value, unless the Defendants submit any data on the fact that research and development related to the items set as research and development expenses had been done on a Deferred asset item after the date of audit for the 1998 portion or that the research and development related to the items set as research and development expenses had a real value below the amount set as the item.

Finally, in relation to exchange rate stopping items, it is temporarily treated as deferred assets in order to treat the exchange loss that occurred in the previous time as future costs, and it is for the purpose of preventing the loss from being a corporation due to large-scale exchange loss, and in light of the accounting practice practices at the time when exchange rate stopping items are treated as exchange rate stopping items, it cannot be evaluated as the deferred assets with real value.

Therefore, it is reasonable to deduct the issue cost, issue cost, and exchange rate stopping item from the total net assets of deferred assets, considering that there is no real value.

③ Accordingly, when the net asset value per share as of January 1, 1999 is assessed, 7,32 won (total net asset value of 92, 725, 039, 812 won - 49,200,000 won - 7,236,207 won for issuance of new stocks - 184,181,906 won - exchange rate of 4,488, 69, 77 won), 12,00,000 won, and less than KRW 49,200,200, and 777 won as of January 1, 199 (the intangible asset value of 192,725, 000 won as a result of appraisal by Han Young Accounting Firm should be deducted).

(B) Net profit value

① The net profit per share of SDR stocks under the Inheritance and Gift Tax Act stated in the 3-day accounting corporation’s report on stock evaluation has increased by 51 won in 196, 693 won in 197, 198, 155 won in 197, 25.7% in 1997, and 6% in 198.6% in 198. Accordingly, the rate of increase in net profit per share in SDR in the future is 25.7% in 25.7% and 46.1% in 66.6% average.

The net profit per share of SDR stocks, calculated in accordance with the corporate accounting standards in accordance with the regulations on underwriting of securities and the implementation regulations, shall be 612 won in 196 (the net profit per net profit 7,346,00,000, 12,000, 000), 659 won in 197 (7,917,000, 12,000 won in / 12,000), 1, 669 won in 198 (20,031, 000, 12,000, 000, 000, 000), and 1,669 won in 198 (20,031, 000, 12, 000, 000, 000) in each immediately preceding year as the average profit increase by 0% in 84% in 198.

Meanwhile, comprehensively taking account of the SDR 1986 to 2004’s financial statements and major financial ratio index, audit report (hereinafter “98”), business report (hereinafter “98”), management diagnosis opinion, etc., SDR is stabilized by its business infrastructure expansion by 1997, and its increase in sales, operating profit rate, ordinary profit rate, net profit rate, total net profit rate, etc. were increased. At the time of issuance of the instant bonds with warrants, SDR was rapidly expanding the domestic market size of the computerized infrastructure and system management business due to the computerization work between the public institutions and the companies. At the time of issuance of the instant bonds with warrants, SDS maintained a market share of 198%, which became the largest effect of such market expansion, and 90 million won was more than 90 billion won in business report for 1999, 99% in total, and 99% in total, more than 99% in total, 99% in total, and 99% in total, more than 99% in total, 99.

② According to the regulations on the securities acquisition business and the detailed implementation thereof, the presumption profits shall be calculated on the basis of the estimated financial statements. However, the data recorded in the records of this case alone are not easy to prepare the estimated financial statements. In order to calculate the stock price based on the estimated profits of the company in future, future profits may be calculated on the basis of the current status and prospects of the industry operated by the company in question at the base point of time, macroeconomic prospects, internal management conditions of the company in question, business plans, or management plans (see Supreme Court Decision 2004Du7153, Jun. 9, 2005). As seen above, the average rate of net profits increase from 1996 to 198 at the time of issuance of the bonds with warrants of this case, and the management status and business prospects of SDR at the time of issuance of the bonds with warrants of this case, the growth prospects of SDR management at that time, and the growth ratio of SDR after 199, at least 30% of net profits after 199.

(3) As prescribed by the regulations on underwriting of securities and the detailed enforcement regulations thereof, when calculating based on 1,69 won per share in the year 198, the net profit per share in the year 1999 shall be 2,169 won (1,69 won x 1.3). The net profit per share in the year 2000 shall be 2,819 won (2,169 won x 1.3). The net profit per share in the year 2000 shall be 2,819 won (2,169 won x 1.5), and the weighted average of 2,429 won (2,169 won x 5) + (2,819 won x 1) x 5) / 15 times the average value of a term deposit in a commercial bank at the time of issuing the bonds with warrants above enforcement regulations.

12. 9% of the net profit value of SDR shares as of January 1, 1999 shall be 18,829 won (2,429 won, 129 October 129).

(C) The value per share of SDR stocks.

As of January 1, 1999, the net asset value per share of SDR stocks is KRW 7,332, and net asset value per share is KRW 18,829, and the net asset value per share is KRW 18,829, under the conditions as prescribed by the regulations on underwriting of securities and the enforcement regulations thereof.

1. Net asset value per share and net profit value: 14,230 won [(((7,332 won x 1) + (18,829 won x 18,829 won)]/2.5 per share of SDR stocks at this time] calculated by applying weighted average rates of 5.1.5

E. Whether there was an act in violation of the duty to determine the establishment of a crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) (1) or not, (2) if the value per share is required to acquire 7,150 won of the preemptive right to new shares that constitute 14,230 won, it would be reasonable to have the acquisition at a lower price than 1/2 of the value per share, and thus, it would be reasonable to have the acquisition at a lower price. However, it would not be easy to determine the reasonable value of the non-listed shares objectively, and there was no possibility of evaluation, and there was no other business judgment factors that were inevitable in the situation of the time of the issuance of the bonds with warrants, such as the possibility of the acquisition of the bonds with warrants, in addition to the reasonable value objectively assessed, even if the bonds were to be acquired at a lower price of approximately 1/2 of the par value per share, it cannot be readily concluded that the act in violation of the duty immediately.

According to the above legal principles, another evaluation is necessary to determine whether the value of 14,230 won per share of SDR stocks calculated as above can be the fair exercise price at the time of issuance of the instant bonds with warrants.

(B) First of all, according to the evidence duly adopted and examined by the court below, it cannot be deemed that the demand for funds equivalent to the issue amount of 23 billion won at the time of issuing the bonds with warrant at the time of issuing the bonds with warrant, and even if there was a demand for funds, it is recognized that the SDR, which was recognized as having been excellent credit rating by a credit rating agency, could have sufficiently raised necessary funds through the head of a financial institution, short-term loans, and the issuance of general corporate bonds, etc. Therefore, even if the value per share of SDR stocks at the time is 14,230 won, even at a low price of 1/20, it is not determined that there was an urgent circumstance that would not have existed in SDR unless there was any other special circumstance to prove that there was any other special circumstance.

In addition, as seen above, 30% of the net profit increase rate in light of the business outlook of SDR at the time of the issuance of the bonds with warrants can be deemed as remuneration, and since this △△△△△ was not considered as the management interest premium (remirum) that is the largest shareholder in assessing the value of the stocks, it cannot be deemed that 14,230 won per share assessed the value of SDR stocks at the time of the issuance of the bonds with warrants, and the transaction value outside the SDR at the time of the issuance of the bonds with warrants of this case was 4 times the above appraised value at the time of the issuance of the bonds with warrants of this case, and the minimum market value in 198, which was 16,90 won in the previous year, may be supported by the actual example of the transaction, which was 198.

Therefore, as seen above, 14,230 won per share of SDR stocks can be deemed as the fair exercising price at the time of the issuance of the instant bonds with warrants. (C) However, if 12,230 won per share lower than 14,230 won per share was issued and 14,230 won was deemed as the fair exercising price at the time of the issuance of the instant bonds with warrants, if the value of 14,230 won can be deemed as the fair exercising price at the time of the issuance of the instant bonds with warrants, damage to SDR due to the instant bonds with warrants would be 6.43,356 million won (2,00 won x 3,216,780), thereby satisfying the requirements of Article 3(1)1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes.

However, it is doubtful whether there was a "act in violation of the above duties" as to whether the value of 12,230 won is lower than that of 14,230 won, and 14% below that of 14,230 won (in short, the value of 14,230 won is equivalent to 1.16 times the value of 12,230 won), 14,230 won, even though it is the result of evaluation of trust, there is no established standard that determines the adequate value of the non-listed stocks objectively, and there is a possibility of various evaluations, and if it is impossible to deny that other business judgment factors, such as the possibility of acquiring bonds with warrants, can be considered together with other business judgment factors such as the possibility of acquiring bonds with warrants, etc., in addition to the objectively assessed value, if it cannot be denied that the degree of difference in the evaluation can not be readily determined as a violation of the duty, due to the lack of reasonable doubt, in light of Article 307 (2) of the Criminal Procedure Act.

The meaning of this analysis is that the degree of difference between the fair exercise price of the preemptive right per share and the actual exercise price is determined on the basis of the degree of difference between the fair exercise price of the preemptive right per share and the fair exercise price in a case in which the issue of the low price of securities, such as stocks, is essentially an issue, it is not determined on the basis of whether the difference between the actual exercise price of the preemptive right issued and the fair exercise price is much much.

In light of the above legal principles, it cannot be readily concluded that the actual exercise price of preemptive rights is lower than the fair exercise price of preemptive rights based on the evaluation, and that the issuance of new stocks with the “ remarkably unfair price” was in breach of the duty.

As a result, there is a question as to whether the actual exercise price of the preemptive right and the fair exercise price of the preemptive right can be seen as a remarkably unfair price when there is a gap to a certain degree. Although there is no clear single standard in light of its nature, if there is no special circumstance, the actual exercise price of the preemptive right can be a standard to distinguish 2/3 of the fair exercise price of the preemptive right based on the evaluation, and 1.5 times the fair exercise price of the preemptive right from the actual exercise price of the preemptive right can be a criterion to distinguish 1.5 billion won (i.e., 1., 15 billion won (14,230 won x 1/3 x 3, 216, 780). In this case, there is room for doubt as to whether there is a fair exercise price of the preemptive right and 230 won from the actual exercise price of the preemptive right and 2/30 won from the actual exercise price of the preemptive right.

In the issuance of the instant bonds with warrants, the most essential part of the “the fact that is the constituent element of the crime” is the issue at the lower price. However, if the Defendants, such as the directors of SDR, who are nonprofit corporations, issued the instant bonds with warrants according to the value appraised by the tax collection authority who can collect only the tax amount based on the law in accordance with the no taxation without considering the possibility of issuing the bonds with warrants, the possibility of issuing the bonds at the lower price would be acceptable. Therefore, the Defendants are at least able to have dolusent intent on the issuance at the lower price.

(B) Whether to recognize illegality

At the time of the Defendants’ issuance of the instant bonds with warrants, there were no laws or established precedents, which serve as the basis for determining the fair exercise price of preemptive rights when the unlisted corporation issues the bonds with warrants, and there were many possibilities of evaluation on the other hand. In such a situation, even if determining the exercise price of the SDR preemptive rights by the supplementary evaluation methods stipulated in the Inheritance Tax and Gift Tax Act and its Enforcement Decree, it appears that the Defendants could have been aware that it was not illegal as a legitimate evaluation under the law at least even if it did not reflect the objective value, and in such a case, it is reasonable to view that the Defendants’ act of issuing the bonds with warrants by such supplementary evaluation methods constitutes “an act of misunderstanding that it does not constitute a crime under the law”

However, Article 16 of the Criminal Code provides that even if it falls under "an act of misleading that does not constitute a crime under the law, it shall not be punishable only when there is a justifiable reason for such misunderstanding." In light of the defendants' behavior situation, awareness ability and social status, it shall not be deemed that there was a justifiable reason for misunderstanding because it could not be recognized that the defendants did not recognize the illegality of their own act as a result of failure if the defendants failed to make a serious effort to avoid the possibility of illegality by having fulfilled their intellectual ability by examining, hearing, or inquiring about the possibility of illegality of their own act in light of the defendants' behavior situation, awareness ability and social status (see Supreme Court Decision 2005Do3717, Mar. 24, 2006).

In light of the evidence duly adopted and examined by the court below, SDR issued 23 billion won bonds with warrant in total on February 26, 1999. SDR acquired 23 billion won bonds from SDR on the same day, and sold 21,820,100,00 bonds with warrant to Samsung △△△△, which were scheduled to become an intermediary underwriter of 21,820,000 won. Samsung LLC transferred △△△△, without the same day, to 6 persons, including △△△△△△△△, 1.7 billion won in total, and 9 billion won in total. The amount of 9 billion won in total transferred 1.7 billion won in total to △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△, which was 1.1 billion won in total and 1.7 billion won in total, and the amount of 9 billion won in total, which was 1.7 billion won in total, was 3 billion won in total.7 billion won in total.

Therefore, the grounds of appeal by the special prosecutor on this point are with merit. (b) In addition, if new shares are issued at low exercise price, the gain acquired by the third party is the aggregate of the dilution share value after the issuance of new shares.

This is the difference in the amount of such payments, and the existing shareholders should calculate the damages of the SDR on the premise that the existing shareholders would suffer damages equivalent to the difference in the total amount of the dilution value after the issuance of new shares from the total amount of shares before the issuance of new shares.

In the case of the method of allocating new shares to a third party, the third party, as the third party newly acquires shares of the company by acquiring new shares, etc., the relationship with the third party cannot be deemed the same as that of shareholders. In the case of issuing new shares, etc. to a third party at a price significantly lower than the market price, the difference between the issue price and the case where the issue price is determined by reflecting the market price properly and the case where new shares are issued at a reasonable price taking into

The company’s loss should be deemed to have occurred as a result of not increasing the company’s assets. In this case, the difference between the fair issue price and the actual issue price under the Company Act shall be calculated by multiplying the difference between the issue price and the actual issue price by the number of shares issued. Such loss of the company shall be deemed to have occurred as a result of the dilution of the actual value of old shareholders as a result of the dilution between the new shares issued at a price lower than the market price and the shares held by the existing shareholders in accordance with the principle of shareholder equality. As such, the damages suffered by the existing shareholders are different from the damages suffered by the previous shareholders due to the dilution of the actual value of old shareholders, and the method of evaluation is inconsistent, and the company’s loss and the shareholder’s loss due to the issue price of new shares, etc. shall be distinguished (see

The reason for appeal by the special prosecutor on this point is well-grounded. (C) Ultimately, the damages suffered by the company due to the issuance of the instant bonds with warrants at a remarkably low price shall be calculated based on the amount calculated by multiplying the difference between the fair exercise price of the instant bonds with warrants by the number of stocks to be issued according to the exercise price of the preemptive rights by the difference between the exercise price of the preemptive rights and the actual exercise price of the preemptive rights (see Supreme Court Decision 2008Do9436, May 29, 2009).

Accordingly, the Defendants acquired 22,774, 80 won (14,230 won - 7,150 won - 14,216,780 won per share of the instant bonds with warrants) x 3,216,780 won, as a result of the Defendants’ acquisition of 3,216, and 780 won per share of the instant bonds with warrants - 3,230 won - 3,216,780) - 7, and SS suffered property damage equivalent to the same amount. (4) The final decision was made by the lower court.

Therefore, at the exercise price which is remarkably lower than the fair exercise price of the SDR preemptive right, the Defendants violated the duty to acquire the bonds with warrants from △△△△△△, etc., or in collusion with them, let this △△△△△△, etc. acquire property benefits equivalent to KRW 22,774, 802, and 400, and caused damages to SS equivalent to the same amount.

Nevertheless, the court below did not prove a crime of violation of Article 3 (1) 1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes because the amount of loss (gains) caused by the act of breach of trust of this case is less than five billion won, and there is no proof of a crime of violation of Article 3 (1) 1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, and only can the crime of violation of Article 3 (1) 2 of the same Act, and even in this case,

5. Conclusion

Therefore, among the grounds for appeal by the special prosecutor, the part concerning the defendant's violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of trust) against the defendant should be reversed on the grounds of its reasoning. The part concerning the defendant's violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of trust) against the defendant should be reversed on the grounds of concurrent crimes under the former part of Article 37 of the Criminal Act, and the part concerning the defendant's violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (tax) as to the defendant's violation of the Act on May 31, 2003 and May 31, 2004 should be reversed together. Thus, the part concerning the defendant's violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of trust), the part of the judgment of the court below as to the defendant's violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of trust), the part concerning the defendant's violation of the Act on the Aggravated Punishment, etc.

Criminal facts

1. The defendants' violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of trust) by the defendants are serving as the chairperson of Samsung Group, a large business group, from December 1, 1987, and served as the director of SDR from March 27, 1998 to March 18, 200. The defendants are the directors of SDR from March 27, 1998 to March 18, 198.

4. From around March 18, 1997 to February 28, 2006, the Samsung Group Corporate Restructuring Director was employed as the head of strategic flag from March 18, 2006 through the head of the Samsung Group Corporate Restructuring Headquarters, and from March 18, 200 to March 18, 200, Defendant Kim○ served as the auditor of SDR. Defendant Kim○ was working as the head of Samsung Group Corporate Restructuring Headquarters, the vice head of the Corporate Restructuring Headquarters, and the head of the Strategic Planning Office from April 1998 to January 2004, and thereafter, Defendant Kim○ served as the head of SDR’s representative director from December 28, 1998 to February 28, 2003. Defendant Park Jong○ worked as the head of the management support office of the United States and the head of the Gu as the head of the Gu.

The Defendants conspired with each other to engage in the following activities. SDR was established on May 1, 1986 for the purpose of "sale of system integration services, provision of data processing and information and communications services using computers, computer operation, such as software development and sale, and telecommunications and Internet-related business," and the total number of issued and outstanding shares as of December 31, 198 and the capital of 60 billion won as of December 31, 1998. The shareholders were Samsung Electronic Co., Ltd. (29. 9%) Samsung C&T Co., Ltd. (25. 3%) Samsung C&T Co., Ltd (25. 3%) Samsung Electrical Co., Ltd (1. 18. 3%) △△△△△, (7. 18. 3%) △△△, Inc. (2. 5%), and it was clearly composed of the above groups with high possibility of construction of Samsung Group's major infrastructure and its financial performance in terms of information management, and it was within 19% of its major investment groups.

However, around February 199, SDR issued bonds with warrants at a low price, and the △△△△△ branch received them, and the 14.8% shares of the 14.8% shares held by the △△ branch, which became the 1st shareholder, thereby allowing the △ branch of this △△ branch to issue privately placed bonds with warrants on the pretext of an urgent need for funds.

Defendant ○○○ had Park around February 199 the above issuance plan for the bonds with warrants transferred to SDR, and he reported this plan to the Defendant, who is the chief restructuring officer, and the Defendant reported this plan to the Defendant Lee ○○, who was the Defendant Lee ○. In addition, the Defendant Lee ○, as well as to the implementation of such plan, reported this plan to the Defendant Lee ○, and the Defendant Lee ○, as well as the remainder of this △△△.

And Kim ○-do ordered the underwriter to join the bonds with warrants.

On the other hand, after receiving the issuance plan of the instant privately placed bonds with warrants from the financial team around February 199, the Defendant Park Jong-○ instructed ○○○ of the management support team leader of the SDR and the representative for the re-major team to collect data on the company’s financial situation and to issue the privately placed bonds with warrants under the pretext of securing urgent facility funds. On February 1999, the Defendant Park Jong-○ reported the background leading up to the issuance of the privately placed bonds with warrants to Defendant Kim who is the representative director under the direction of the financial team of the Financial Team of the Restructuring Headquarters.

On February 19, 199, according to the order of the defendant Park Jong-○, it is necessary for SDR to secure funds for the system management business (SM business) and funds for the repayment of CP and corporate bonds in advance. The amount of funds to be urgently secured by the end of February is at least 59 billion won, and 30 billion won among them is favorable for the issuance of privately placed bonds with warrant and the remaining 29 billion won to be procured by public offering company." 1/4th quarter emergency fund financing plan was prepared and approved by the U.S. and the defendant Park Jong-○ on February 20, 199, and during that process, the preemptive rights were requested by the accounting corporation on February 20, 199 to assess SDR's shares among the accounting corporations on February 2, 199 and evaluate them according to the inheritance and gift Tax Act.

Unlike that initially planned on February 22, 199, Defendant 00 and ○○○ issued an order to attend this and Kim○do, and that direction was delivered in sequence to Defendant Park○, and Kim○○ around that time through Kim○, the Defendant’s order was delivered in that time. On February 23, 1999, U.S., according to the direction of Defendant Park○○, the person who is expected to take over the issue of the issue bond on February 23, 199, need to separately issue the bonds with warrants of KRW 23 billion according to the size of the capital of 6 persons, including this △△△△, Defendant, this, and Kim○, etc., with the revision of the initial size of the capital and the approval of Defendant Park○ on February 24, 199.

At the time of February 199, Defendant Kim was responsible for the overall management of the company as the representative director of SDR, and Defendant Park Jong-○ was responsible for the financial affairs of the company as the executive officer in charge of the financial affairs of the company. As such, Defendant Park Jong-○ was responsible for the duty of due care as a good manager by making a decision on the issuance of the instant bonds with warrants as prescribed by the articles of incorporation and statutes, as well as by strictly examining the necessity of the issuance of such bonds and the substantial requirements such as the size and contents of the bonds to be issued, as well as by making a reasonable decision.

SDS improved profitability from 1998 as of February 199, 198, 20 billion won for net income in 1998, and 1998 management performance in 197, records about 309.9% for ordinary profit increase rate, 47.7 billion won as of the end of 1997, 14.7% for equity capital increase, 14.5% from 14.5% for equity capital increase, 578% from 199, 439% from 578% from 439%, and 4.39% from 199, and 4.3 billion from 1998, 40 billion from 1998, and 1998, 309.3% from 1997, and 1998, 40% from 199 to 19.3% from 197, it is necessary to ensure that 000 percent of the existing shares issued by the unlisted company had reasonable value of the new shares.

Nevertheless, Defendant Kim Jong-, Park ○, etc. in violation of their duties did not examine whether SDR requires urgent funds in detail, and instead let this △△△, etc. acquire the instant bonds with warrants at low prices, thereby allowing them to acquire them at low prices, thereby having become the first major shareholder of Samsung Electronic Co., Ltd. (29.

19% of the shares of the 19% 23.6% , instead of this, the shares of the 14.8% 1 to 25.4% prior to the increase of 14.8% to the 1st shareholder, and the 1st shareholder:25 February 25, 199; the Gangnam-gu Seoul Eastern 707 - the 207 - the 24th meeting of the 19th office of SDR building held at the 24th, the board of directors for the issuance of the bonds with warrant held at the 23.0 billion won ; the 2.3 billion won - the total amount of the shares of the 10.8 billion won - the 200 billion 20 billion won - the 10. The 205 billion won 1 billion won - the total amount of the 20. The 1 billion won 5 billion won - the 1 billion won - the 20. The 1 billion won - the 20.

In calculating the issue value of bonds with warrants, the directors, including Defendant Kim, were determined as KRW 7,150 per share to the exercise price of bonds with warrants, as a result of supplementary evaluation prescribed by the Inheritance Tax and Gift Tax Act, which was implemented at the time without considering all the circumstances such as the company's financial structure, business prospects and market evaluation thereof, financial market situation, possibility of acquiring new stocks, etc., in addition to the reasonable price reflecting the real value of the existing stock transaction cases and the actual value of the stocks.

After all, the defendant ○○, ○○, and ○○○, as the chairperson of each Samsung Group, the head of each headquarters for structural adjustment, and the head of each team for structural coordination, planned the issuance of the instant bonds with warrants before SDR’s board of directors. The final underwriter himself/herself designated the bonds of this case, and the directors of SDR, including ○○, etc., were in violation of their duties while engaging in the business of issuing the instant bonds with warrants, thereby having 14,230 won per share, which is remarkably lower than 16, 70 won per 6, 780 won (the 657, 342, 475, 475, 475, 476, 476, 576, 306, 476, 500 won per share, 57, 506, 576, 376, 57, 57

2. Defendant 00% or more of the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) by ○○○○○, this, and Kim○○○’s violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) is a major shareholder who owns 3% or more of the shares of Samsung Electronic Co., Ltd., Samsung Electricity Co., Ltd, Samsung Fire and Marine Insurance, Samsung SPE Co., Ltd., Samsung F&C Co., Ltd., Samsung Securities Co., Ltd., Samsungwon Co., Ltd., Samsungwon Co., Ltd., Ltd., Samsungwon Co., Ltd., Samsungwon Co., Ltd., Ltd., Samsungwon Co., Ltd., and Samsung C&C Co., Ltd., Ltd., their relatives, and other specially related persons, or whose total market value of shares owned by each company is at least 10 billion won, and the Defendant is a person who directed and supervised the Defendant this and Kim○, etc. on September 17, 2004.

The Defendant ○○○, a person liable to pay capital gains tax, should file a final return on the tax base of capital gains on the above income until May 31, 2003, on the following grounds: (a) managing a large number of securities consignment accounts opened by borrowing the name of executives, etc. of Samsung Group’s affiliates, etc.; and (b) selling 7,199 shares from January 1, 2002 to December 31, 2002; and (c) selling 18,185,97,441 shares of the stock-listed corporations, including Samsung Electronic, etc.; and (d) Defendant ○○, a person liable to pay capital gains tax, should file a final return on the tax base of capital gains tax on the above income by not later than May 31, 2003; (b) Defendant ○○, this, and this Kim○○, in series of order, made it difficult for a tax official to discover all the assets of this name account, and did not file a report on capital gains tax on the above 300 years 285 years and 37.

In addition, Defendant 1, 202 to 206, from 2002, Defendant 1, 200 to 206 (Provided, That Defendant B, 2002 and 2003), conspired to sell 1,074,854 shares of the above 7-listed corporations, such as Samsung Electronic Co., Ltd., owned by ○○ through the borrowed securities consignment account in the name of executives of Samsung Group and incumbent, and sold 1,074 shares, 854 shares for five years as shown in the above-mentioned separate sheet, despite the occurrence of gains on transfer of 232,837,803, 803, 108 won until May 31 of the following year, 202, 634, 357, 86, 746, 767, 97, 207, 209, 746, 796, 767, 757, 2007

3. The defendant's violation of the Securities and Exchange Act

Where there is a change in the number of stocks of a stock-listed corporation’s officers or major stockholders holding on their own account regardless of in whose name the accounts stand in, they shall report the change to the Securities and Futures Commission and the Exchange by the tenth day of the month following the month in

Defendant ○○ was an officer of Samsung Electronic, a stock-listed corporation, and exercising de facto influence over the major management issues of the corporation, such as the appointment and dismissal of executive officers, with respect to Samsung Fire Marine Insurance, Samsung Electricity, Samsung Electricity, SamsungSDI, Samsung T&T, Samsung T&T, and Samsung Securities. On April 10, 2005, the Seoul and F&T sold Samsung Electronic Stocks 8,250 shares through the borrowed account in the name of executive officers before and after Samsung Group, but did not report the change in its shares until May 10 of the same year to the Securities and Futures Commission and the Exchange.

11. By October, 100, the court below did not report the changes in the stocks owned over 51 times as stated in the list of violation of duty to report.

Summary of Evidence

【Crime No. 1 of Judgment】

1. The statement of Defendant Kim in the trial records of the court below

1. The defendant examination protocol on the defendant Kim ○, and Lee ○○, by the court below

1. A witness examination protocol of the lower court concerning △△△△, △△○, △○, and Park ○;

1. The protocol of examination of witness of the party examination before remanding Kim XX;

1. Each protocol of examination of the accused, Kim ○-○, and Park ○-○, in preparation of the special prosecutor’s report

1. Each written statement of the △△△△, Gangwon-do, and regular ○○○, prepared by the public prosecutor;

1. Each statement of the special prosecutor's records, Kim Matern and oil;

1. A report on stock evaluation services, a written request for conversion, minutes of the board of directors, audit report, an urgent financing plan for the first quarter, the current status of the issuance and equity ratio change of SDS B B, the current status of the value of SDS over-the-counter trading, the current status of the issuance and equity ratio change, investigation report (see, e.g., ascertaining over-the-counter transactions, considering the necessity of investigating the acquisition of SDS stocks of △△△△△, considering the necessity of investigating the fact of the acquisition of SDB by △△△△△△△△, examining the necessity of examining the necessity of issuing △△△△△△△△, attaching a copy of the contract for transferring securities with preemptive rights, reporting the problems in the minutes of

[Judgment Nos. 2 and 3]

1. In the trial records of the court below, each statement of the defendant ○○○, this part, Kim○, and the last ○○○;

1. A protocol of examination of the witness to ○○○○○ as the witness of the lower court;

1. A person on April 4, 2008 and April 11, 2008, who prepared a special prosecutor’s protocol of examination of the accused ○○○ in the special prosecutor’s report

1. Each protocol of examination of the maximum and △△△△△△ in preparing the special prosecutor’s report;

1. The protocol of statement of the defendant ○○, prepared by the special prosecutor;

1. 검사 작성의 전○○, 성○○, 오○○, 이 ■■, 이 … …, 박XX에 대한 각 진술조서 1. 검사 작성의 배○○ ( 제2회 ), 황○○, 이소 ( 제2회 ) 에 대한 각 진술조서 ( 차명계좌 명의자 )

1. Statement of the particulars leading to the submission of data on April 10, 2008, and April 16, 2008, respectively; and

Application of Statutes

1. Article applicable to criminal facts;

A. The defendants' violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of Trust): Article 3(1)1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Articles 356, 355(2) and (1), and 30 of the Criminal Act (Selection of Imprisonment for a limited term)

B. Defendant Lee ○, this, and Kim ○: Article 8(1)1 of the Act on the Aggravated Punishment, etc. of Specific Crimes; Article 9(1)3 of the Punishment of Tax Evaders Act; and Article 30 of the Criminal Act (Joint Imposition of Fines pursuant to Article 8(2) of the Act on the Aggravated Punishment, etc. of Specific Crimes)

C. Violation of the Securities and Exchange Act by the Defendant 00: each of the subparagraphs 5 and Article 188 (6) of the Securities and Exchange Act (Selection of Imprisonment)

1. Handling concurrent crimes (Defendants this case);

The latter part of Articles 37 and 39(1) of the Criminal Act (the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) and the Act on the Aggravated Punishment, etc. of Specific Crimes (the Act on the Aggravated Punishment, etc. of Specific Crimes) and the Act on Political Funds for which judgment becomes final and conclusive)

1. Aggravation of concurrent crimes;

A. Defendant Lee○-○ and Kim○-○: the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act, and Article 50, shall apply mutatis mutandis to the punishment of imprisonment with prison labor as prescribed for the crime of violating the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) on May 31, 2007, and a fine which is essential for each violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) is excluded from the application of Article 38(1)2 of the Criminal Act on the aggravation of concurrent crimes under the main sentence of Article 4(1) of the Punishment

B. Defendant: The former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act shall apply mutatis mutandis to the punishment of imprisonment with prison labor as provided for in the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) on May 31, 2004, which is the largest sentence of the crime, shall be aggravated, and Article 37(1)2, and Article 38(1)2, and Article 50 shall be mitigated.

Defendant Lee ○, this, and Kim ○: Article 53, Article 55(1)3, Article 55(1)6, Article 55(1)3, and Article 55(1)3, Article 53, and Article 55(1)3 of the Criminal Act (each of the following extenuating circumstances among the grounds for sentencing)

1. Suspension of execution (the Defendants)

Article 62 (1) of the Criminal Code (The conditions favorable to each of the following reasons for sentencing shall be considered)

1. Determination of a fine (Defendant 000)

The details of fines for the violation of each Act on the Aggravated Punishment, etc. of Specific Crimes (tax) are as shown in the corresponding column of "the list of evasion of capital gains tax" attached to the court below.

1. Detention in a workhouse (Defendant ○○○);

Articles 70 and 69(2) of the Criminal Act

1. Exemption from a fine (Defendant, this, Kim ○○);

The proviso of Article 3 of the Punishment of Tax Evaders Act (the above Defendants are not oligopolistic stockholders under the Framework Act on National Taxes, and are merely illegal to an actor, and there are no economic benefits acquired by committing a crime of tax evasion, and the fine of KRW 10 billion is imposed concurrently on Defendant 2, who is an accomplice.)

1. A provisional payment order (Defendant ○○○);

Article 334(1) of the Criminal Procedure Act

Parts of innocence

1. Of the facts charged in the instant case, the summary of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of trust) regarding SDR bonds is as stated in the above 4. A. D. on the same ground as stated in the above 4. C. D. on the same ground, this part of the facts charged constitutes a case where there is no proof of a crime, and thus, it should be acquitted under the latter part of Article 325 of the Criminal Procedure Act, but as long as it is found guilty of the facts charged in a single crime, it shall not be pronounced

2. From May 31, 2003 to May 31, 2007, the Defendants conspired to manage the shares acquired prior to December 31, 1998, among the facts charged by the Defendants against the Act on the Aggravated Punishment, etc. of Specific Crimes (i.e., May 31, 2003 and May 31, 2004), as a multiple securities consignment account opened by borrowing the name of the executives of Samsung Group, etc., and (ii) manage the shares acquired prior to December 31, 1998 as a multiple securities consignment account opened by the said Defendants by fraudulent or other unlawful act.

The part falls under the case where there is no proof of a crime for the reasons stated above 3. The defendant should be pronounced not guilty under the latter part of Article 325 of the Criminal Procedure Act. However, as long as the defendant is found guilty of a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax violation (tax violation) in the relation of each one, May 31, 2003 through May 31, 2007.

1. The reason for sentencing is that according to the principle of responsibility, which is one of the fundamental principles in the criminal law, the amount of punishment should be determined within the scope that does not exceed the size of the offender's responsibility. However, as the essence of responsibility is an adult who can be criticized, the size of responsibility is determined by the size of the possibility of criticism.

2. The amount of damages arising from SDR caused by the Defendants’ breach of trust can not be deemed as a small amount. However, according to the difference between the fair exercise price of the preemptive right per share and the actual exercise price, the degree of the degree of the breach of trust can be determined as a matter of principle. Therefore, the degree of the possibility of criticism against the breach of trust should also be determined based on the degree of the possibility of criticism as to the act of breach of trust. In determining the degree of the possibility of criticism setting the degree of responsibility, the degree of low-price issuance of the preemptive right per share has primary meaning, and the total amount of damages arising from the issuance of low-price has secondary meaning. However, in this case, although there is no reasonable doubt as to the fact that the actual exercise price of the preemptive right is established by up to 1/2 of the fair exercise price, it is difficult to say that the degree of criticism is too severe.

In addition, even though it is inevitable to punish the Defendants without justifiable grounds that they could have known that the issuance of the instant bonds with warrants under the supplementary evaluation methods prescribed by the Inheritance Tax and Gift Tax Act and the Enforcement Decree thereof was illegal, it is inevitable to punish the Defendants without any justifiable reason. However, there was no statute or established precedents, which would be the basis for determining the fair exercise price of preemptive rights when an unlisted corporation issues bonds with warrants at the time, and there exist various different evaluations possibilities, it seems that determining the exercise price of SDR preemptive rights by such evaluation methods would be at least a legitimate evaluation under the law, even if not reflecting the objective value, even if it is not a legitimate evaluation under the law, and the Defendants’ act in such a situation

Although there are laws or established precedents that set the fair exercise price of preemptive rights to new shares, the possibility of criticism should be significantly reduced compared to the cases where a person committed an illegal act in violation of the laws, such as disregarding and neglecting it, even though he clearly recognizes it as to the legal nature of his act.

Furthermore, Defendant ○○○ paid 2.7 billion won or more to SDR, which is the victim, to the victim, thereby recovering the damage. After the Defendants committed the instant breach of trust, the Defendants, such as the directors, auditors, or managers of SDR, have continued relationship with the victim, making net income at KRW 40.3 billion in 1999, 66.2 billion in 2000, thereby increasing 200% in 198, 300% in 1998, and 200% in 200. Since SDR continued its continuous development, it may be considered as a decrease in the Defendants’ liability in that the Defendants, which is the victim, contributed to the considerable development of SDR.

3. It seems that the amount of capital gains tax evasion has reached 46.5 billion won, and it is highly likely to be criticized in light of the long-term period of 6 years. However, the capital gains tax is due to 97% of the amount of tax evasion from the capital gains of Samsung Electronic Shares. The reason why the capital gains tax has been significantly increased between the beginning of 1999 and the end of 2006, which is the period of stock sale, and the stock price of Samsung Electronic Shares has been long-term holding shares in the borrowed account. In addition, the capital gains tax of this case began to have been used from the beginning of 1970s in accordance with the plan to maintain the major shareholder's shares by avoiding regulations such as the Corporate Disclosure Promotion Act, etc. since 1970s, the capital gains tax of this case began to have been reduced within the framework of 400 billion won, including that of Defendant 400 billion won, in light of the motive to replace the name of the shares and increase the capital of this case, and that Defendant 4000 billion won could have been gradually punished.

4. Article 188(1) of the Securities and Exchange Act provides for the return of profits on the ground that an insider is likely to use the company’s information in an unfair manner when the insider trades shares of the company, and the profits from short-term sale are likely to be generated by the internal information use. The provision on the duty to report the ownership status of the instant shares can be deemed as a regulatory method in place to ensure the effectiveness of the return of short-term profits. In light of the fact that the quantity of the instant shares transaction cannot be deemed as a short-term sale, it is difficult to view it as an act contrary to the purport of

In this respect, it cannot be said that there is a great possibility of criticism.

In addition, the violation of the Securities and Exchange Act is that the statutory penalty is imprisonment for not more than one year, and it cannot be said that it significantly affects the decision of the sentence of the defendant ○○.

5. As examined above, the extent of the Defendants’ responsibility for the commission of the crime (the possibility of criticism) and the sentencing conditions of Article 51 of the Criminal Act, which are shown in the records of this case, are determined as ordered by the Defendants.

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

Judges - Kim Chang-suk

Judges Choi Ho-ho

Judges Ko Dong-dong

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.