Defendant

Defendant and Prosecutor

Kim Jae-sik et al.

Law Firm Mad Cow, Attorneys Lee Ho-ki et al.

Seoul Central District Court Decision 2008Gohap475 Decided September 19, 2008

We reverse the part of the judgment of the court below regarding each violation of the Securities and Exchange Act.

Defendant shall be punished by imprisonment with prison labor for a violation of the Securities and Exchange Act, and a fine of KRW 15,00,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in the workhouse for the period calculated by converting the amount of KRW 15,000,000 into one day.

One hundred and fifty days of detention days before the pronouncement of the judgment of the court below shall be included in the above imprisonment for the defendant.

The provisional payment of the amount equivalent to the above fine shall be ordered.

The appeal filed by the defendant and prosecutor against the violation of the Public Official Election Act in the judgment of the court below and the prosecutor's appeal against the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes

1. Summary of grounds for appeal;

(a) Reasons for appeal by the defendant;

The summary of oral argument submitted after the deadline for submitting the grounds for appeal shall be determined within the scope of supplement in case of supplement in the grounds for appeal.

1) misunderstanding of facts or misapprehension of legal principles

A) Violation of the Securities and Exchange Act due to fraudulent illegal transactions

(1) The point of fraudulent fraudulent transactions by spreading false information

The contents of each press report in attached Table 1 of the judgment below are not false facts, and even if some contents of domestic affairs are false, the defendant did not have any awareness of false facts, and even though there was no intention to obtain unjust profits, the court below found the defendant guilty of the violation of the Securities and Exchange Act due to fraudulent illegal transactions through the distribution of false facts, there is an error of law or misunderstanding of legal principles.

(2) The point of fraudulent fraudulent transactions through the use of false document

(A) The facts charged as to this part of the facts charged constitute a violation of the provisions of the indictment procedure, since the indictment procedure is not clearly specified as to what is the false document, what is the document's specific act, what is the act of document use, what is the purpose of obtaining property benefits by inducing misunderstanding to others, and what is the circumstance is, etc., and thus, it is erroneous in the misapprehension of legal principles as to the specification of facts charged

(B) As of July 6, 2006, the time when the defendant first submitted a report on the failure to report the borrowed stocks, the defendant does not have a duty to actively revise the false and misrepresentation documents. Thus, the neglect of the existing misrepresentation documents does not constitute the use of documents under Article 188-4 (4) 2 of the Securities and Exchange Act, but the court below's conviction of this part is erroneous in misunderstanding of facts or misunderstanding of legal principles.

(C) An executive officer and a major shareholder’s stock report that did not state the ownership status of the borrowed stocks is difficult to be deemed to be an important matter related to the “transaction” under Article 188-4(4)2 of the Securities and Exchange Act, and there is a need for causation between the use of documents and the act of causing misunderstanding to others in order to establish the fraudulent fraudulent transaction caused by the use of the false documents. Whether the borrowed stocks are the borrowed stocks is not the purchaser of the stocks, and there is no risk of misunderstanding the other investors as well as the purchaser of the stocks, and the Defendant did not intend to obtain economic benefits by using the false documents, but the lower court found the Defendant guilty on this part is erroneous in misapprehending the legal principles

(3) The point of "the calculation of the amount of profit and causation", which is the basis of statutory penalty.

(A) Article 207-2(2) of the Securities and Exchange Act provides that when the amount of profit derived from a violation exceeds five billion won, the person shall be sentenced to imprisonment with labor for life or for not less than five years, and the minimum amount of imprisonment with labor shall be determined according to the amount of profit. In interpreting “the profit derived from the violation” under the above provision of the Act, if it is interpreted that the direct causal relationship between the defendant’s violation and the amount of profit does not require any direct causal relationship, the above provision of the Act is unconstitutional as it goes against the principle

(B) In order to punish an aggravated amount according to the amount of profit by applying Article 207-2 (2) of the Securities and Exchange Act, even though only the part having direct causal relationship with the fraudulent illegal transaction should be the amount of profit, the court below erred by misapprehending the legal principles that significantly expanded the scope of profit, and there is no evidence to acknowledge the causal relationship between the defendant's act and the stock price increase of non-indicted 1 corporation in the process, and there is no error of misunderstanding of facts or misunderstanding of legal principles in that all circumstances related to the concentration purchase by non-indicted 15 group as the cause of actual stock price increase are not considered at all in the judgment

(4) Number of crimes

Although the court below considers a violation under Article 188-4 (4) 1 and 2 of the Securities and Exchange Act as an inclusive crime, the criminal facts falling under Article 188-4 (4) 2 of the Securities and Exchange Act cannot meet the elements of the above law, and the stock price increase cannot be caused only by the sale of borrowed stocks. Thus, since it is difficult to calculate the amount of profit, it is difficult to punish a violation under Article 188-4 (4) 2 of the Act pursuant to Article 207-2 (2) of the Act, and each act under Article 188-4 (4) 1 and 2 of the Securities and Exchange Act differs from the intention, the court below erred in the misapprehension of legal principles, since it is ultimately impossible to rate a violation under Article 188-4 (4) 1 and 2 of the Securities and Exchange Act as an inclusive crime.

B) Violation of the Securities and Exchange Act due to the use of undisclosed information

(1) Although the Defendant did not instruct a non-indicted 2 to acquire the shares of the non-indicted 1 corporation before determining whether to publicly announce the acquisition of its own shares, the lower court erred by misapprehending the legal principles regarding the finding of guilty of a violation of the Securities and Exchange Act due to

(2) In light of the fact that the shares acquired in the name of Nonindicted Co. 4 are still held, the Defendant’s purchase of 60,000 shares in the name of Nonindicted Co. 4 and Nonindicted Co. 5 is merely a series of series of series of continuous acts that have purchased the shares of the Company through a method used for the share price management after listing regardless of the personal purpose, such as profit margin acquisition, and it cannot be deemed that the Defendant used undisclosed information. However, the lower court found the Defendant guilty of the violation of the Securities and Exchange Act due to the use of undisclosed information solely on the ground that the lower court simply purchased 60,0

C) Violation of the Public Official Election Act

(1) The Defendant did not have the perception that the borrowed name property in the name of executive officers and employees was owned by the Defendant.

(2) The Defendant had already been recommended as a candidate for proportional representation by the integrated democratic party before filing a property report, and there is no circumstance that the fact of holding borrowed property was adversely affected by the “recommended” of the candidate for proportional representation, and the candidate for proportional representation is determined whether to win the election according to the result of voting to the political party differently from the candidate for the local constituency, and thus, it cannot be deemed as favorable to the election. The Defendant, as the candidate for proportional representative six proportional representation by the integrated democratic party, was actually finalized before filing a candidate’s property report to the election commission on April 9, 2008 or March 26, 2008, and thus, it cannot be deemed that there was the purpose of election in the instant property report. Thus, the lower court erred by misapprehending the legal principles or misapprehending the legal principles.

(3) The prosecutor did not specify the facts constituting “the purpose to be elected” and did not state the facts charged. However, the court below erred by misapprehending the legal principles on the principle of no accusation, which clearly deviates from the scope of the facts charged, by misapprehending the scope of the charges, on the ground that, if it is revealed that the facts leading to the formation of assets and the fact that the Financial Supervisory Service was investigated thereby, etc. were not stated in the facts charged, selling the borrowed stocks and selling them, thereby adversely affecting the voting of the political party to which he belongs, thereby making the Defendant elected in disclosing false property by omitting the borrowed property in the report on the property of the candidate for public election.

2) Unreasonable sentencing

The sentence imposed by the court below on the defendant is too unreasonable.

(b) Grounds for appeal by prosecutors;

1) misunderstanding of facts or misapprehension of legal principles

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

(1) According to the evidence submitted by the prosecutor, on November 1, 2007, when Nonindicted 6, who is one of the general shareholders of Nonindicted 1 Co., Ltd., mobilized violence to threaten the Defendant, Nonindicted 1’s attempt to pay KRW 800 million for the corporate fund of Nonindicted Co. 7, a subsidiary of Nonindicted Co. 1, and voluntarily withdraw the corporate fund of Nonindicted Co. 8, a representative director of Nonindicted Co. 7, and then voluntarily withdraw the corporate fund for the Defendant’s personal use, and in collusion with Nonindicted 8 on December 11, 2007, Nonindicted 8, who received the Defendant’s order, did not use the funds of the Defendant for the purchase of machinery as “Advance payment for the purchase of machinery,” and at around that time, he did not use them for the purchase of machinery, and did not use it for the purchase of machinery for the purpose of using KRW 800 million for the Defendant’s personal use, such as payment of personal compensation to Nonindicted 6.

(2) Even if the crime of embezzlement is not established, comprehensively taking account of the developments leading up to the conclusion of the sales contract, the illegality of the determination of the amount and conditions, and the fact that the defendant unilaterally ordered the representative director of the subsidiary to purchase machinery, it is unreasonable for the court below to find the defendant not guilty without asking for an explanation.

B) Violation of the Securities and Exchange Act and the Public Official Election Act relating to the borrowed-name shares of Nonindicted 2 and 3

(1) The part on the violation of the Securities and Exchange Act concerning the borrowed-name shares of Nonindicted 3 and the part on the violation of the Public Official Election Act

According to the statement of Nonindicted 2, it can be acknowledged that the defendant used the name of Nonindicted 3 while purchasing shares under the direction of the defendant, and that the defendant reported the change in the shares in the name of Nonindicted 3 when purchasing shares in the first name. Thus, even if Nonindicted 2 did not report the change in the shares in the name of Nonindicted 3 to the defendant, even if the defendant did not specifically report the sale of the shares in the name of Nonindicted 3 to Nonindicted 2, the defendant was aware that his shares in the name of Nonindicted 3 were the defendant's property. Thus, even if it was sufficiently recognized that the violation of the Securities and Exchange Act and the violation of the Public Official Election Act with respect to the name shares in the name of Nonindicted 3 were sufficiently recognized, the court below acquitted the defendant on this part on the ground that he did not know the existence of the account in the name of Nonindicted 3 and did not know that his shares in the name of Nonindicted 3 were the defendant's property.

(2) The violation of the Securities and Exchange Act and the Public Official Election Act concerning the borrowed-name shares of Nonindicted 2

In light of the fact that around November 2007, at the defendant's order, 44,338 shares sold among the shares in the name of non-indicted 2 was paid out of the sales price of the shares sold by non-indicted 2 when the sale price of the shares in the name of the defendant's name and the shares in the name of the name of the name of the name of the name of the defendant were deposited in the non-indicted 4 corporation, and that at the time the company's retirement creditor filed a lawsuit against the defendant, the defendant ordered the non-indicted 2 to resolve the sale price of the name of the shares in the name of the name of the non-indicted 2, and paid 30 million won out of the funds in the non-indicted 2's sale as compensation for the non-indicted 9, the fact that the 44,338 shares were sold among the shares in the name of the non-indicted 2 was the name of

C) The point of collection

The Act on Regulation and Punishment of Criminal Proceeds Concealment clearly prescribes that the act of concealing criminal proceeds related to a specific crime is subject to forfeiture of criminal proceeds related to a specific crime, and therefore there is no legal basis to interpret the criminal proceeds subject to forfeiture or collection as limited to the profits having a direct causal relationship with the act of violation in the case of a violation of the Securities and Exchange Act due to fraudulent illegal transactions. In addition, the entire market profits earned by the defendant in this case are recognized as a direct causal relationship with the defendant's fraudulent unfair trading, even though the court below's failure to sentence penalty is erroneous in the misapprehension of legal principles as to collection.

2) Unreasonable sentencing

The sentence imposed by the court below on the defendant is too uneasible and unfair.

2. Determination on the grounds for appeal

A. Judgment on the mistake of facts or misapprehension of legal principles by the defendant

1) Determination as to the violation of the Securities and Exchange Act due to fraudulent illegal transactions

A) The violation of the Securities and Exchange Act due to fraudulent fraudulent transactions

The prohibition of fraudulent unfair trading under Article 188-4 (4) of the Securities and Exchange Act is aimed at protecting individual investors' interests in securities trading and protecting investors' trust in the general securities market, thereby contributing to the development of the national economy. Thus, whether the securities market is an act related to the trading of securities, etc., whether it is false or not, and whether it seeks to acquire unjust profits or economic profits shall be determined by objective criteria, comprehensively taking into account the status of the offender, the management status of the issuing company, the trend of the share price, all the circumstances before and after such an act (see Supreme Court Decision 2003Do686, Nov. 14, 2003).

B) Determination as to the fraudulent fraudulent transactions through the dissemination of false facts

(1) Determination as to whether false information was disseminated

(A) Basic facts

According to the evidence duly examined and adopted by the court below, the following facts can be acknowledged.

① Around November 2006, the Defendant, a representative director of Nonindicted Co. 1, who is a corporation listed on the KOSDAQ, was interested in the development of the Taegue mine in Uzbekistan with the visit of Nonindicted Co. 11, a representative director of Nonindicted Co. 10, a corporation representing Nonindicted Co. 10, a representative director of the corporation.

② Around January 2007, the term “probed mine status data” of the Uzbekistan Resource Committee secured by the Defendant was not verified as the subject, method, etc. of the investigation for 20 years. Moreover, even if based on the data, the store quantity of “IO2”, which is worthy of development, was limited to approximately 80,00 tons, of the estimated store quantity of approximately 10,000 tons at the 8th place in the ordinary mine.

③ On February 2, 2007, the Defendant received from Nonindicted 11, 2007 a simple data of eight (8) KGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGG

④ From February 19, 2007, the Defendant exchanged Nonindicted Co. 11’s opinions on the conclusion of the memorandum of understanding with Nonindicted Co. 11. On April 19, 2007, the Defendant entered into an agreement between Nonindicted Co. 1 and Nonindicted Co. 10, the National Institute of Geological Resources in Uzbekistan and the State Public Corporation in the Republic of Korea on April 19, 2007 on the possibility of studying the possibility of the manufacture of the Industrial Preamble on the basis of the sibrity and tin bed.

⑤ At that time, there was only discussion between the Defendant and Nonindicted 11 regarding the share ratio of a limited partnership company to be established at that time, and there was no dialogue or specific agreement with the Parties to Uzbekistan, and Nonindicted 11 gave answers that it is difficult to secure a share of at least 51% requested by the Defendant in accordance with the practices of development of Uzbekistan resources. Since the conclusion of the memorandum of Understanding, no new agreement has been reached between the parties to the conclusion of the memorandum of Understanding.

④ Nonindicted Co. 1 did not officially verify that it was designated as a developing company in Uzbekistan from the Republic of Uzbekistan, while the Defendant sent e-mail to Nonindicted Co. 11 on August 2007, and asked Nonindicted Co. 11 about whether the qualifications secured until that time are qualified as the preferred negotiating party or any other qualification.

7) Normally, the price of sibs and sibs is within 15 U.S. dollars per ton as of 98-99% per ton as of 207, and the highest level of 15 U.S. sibs and sibs and sibs and sibs and sibs and sibs and sibs and sibs and sibs and sibs and sibs and sibs and sibs and sibs and sibs in the highest level of 9% per ton are merely 25 to 30 U.S. dollars per ton. Since the value of minerals as a product the extraction of which is completed

(8) As minerals which form a substantial part of the earth's surface of the earth (the domestic ordinary store's quantity shall be estimated to be 1.2 billion tons, the ordinary store's quantity shall be estimated to be 6.5 million tons) and the high-level net shop's quantity at least 99%, as it also has sufficient store quantity in the world, there was no particular price fluctuation during the recent years, and there is little possibility that the price may rise rapidly due to shortage in the supply.

9) In putting regular company into electricity and supplying electricity of 8,00-12,00k for a ton of a ton of a to make a chemical reaction, the “Mesium container” was made. At the time, Mesium was inside and outside 15 per ton of a ship, while Mesium container was in and outside of 15,000 for a ton of a ship, there is a reasonable difference in the price as 1,000 for a metsium container. Of the manufacturing cost, 50-60% of the manufacturing cost is electricity charge, and there is no need to have a large technical power, such as environmental pollution, such as dust, etc., in the manufacturing process, while there is a low operating profit rate (the cost of loans is used to cover electricity charges and transportation expenses), the manufacturing industry is not a high-value industry.

(10) The substantial part of the "Mesium container" is used for other purposes, such as Aluminium refining, and only 6-7% of them are used as raw materials of "Posium container". The source technology for the manufacture of "Posium container (Si 9.999% or more of them)" is used for only five companies all over the world, and only five companies are holding a high technical barriers, and the technical gap between the latter and the latter companies is more than three years. The manufacturing equipment of the same level as the semiconductor factory is required. Even under the premise that the actual processing technology reaches a considerable level, at least 30 billion won of initial investment can be installed, and the initial investment funds may be increased if considering the cost necessary for securing technology. Even if a factory is constructed with technical power and funds, at least two years have elapsed since construction.

(11) While Mesium container can be produced through a relatively simple process, such as putting collected Mesium into electricity and supplying electricity, polysium container can be produced at a much higher level than Mesium by adding a complex chemical treatment process to Mesium container. Furthermore, polysium container can be produced only by manufacturing polysium in a metal strawer and treating them in the same manner as vesium formation which cut shortly, it is possible to manufacture solar batteries. 15-30 Mesium, natural minerals per ton at the time of 2007, 100 Mesium, and polysium container are traded at a level of 10,000, and 100,000, polysium container is very large, and more competitively competitively competitively competitively competitively competitively competitively industrially industrially industrially industrially industrially industrially industrially industrially industrially industrially industrially industrially industrially industrially industrially industrially industrially industrially industrially industrially industrially industrially industrially industrially industrially industrially industrially industrialized.

(12) Nonindicted Co. 1 did not previously engage in polychemicals business and did not secure relevant technology, and even if enormous investment was required to engage in polychemicals business, the person who performed the work in connection with polychemicals in Nonindicted Co. 1 Company was in fact Nonindicted Co. 81, the head of the new business team in around 2007. Nonindicted Co. 8 collected data on polychemicals, etc. around 2007 and consulted with experts. However, in the process, it did not only conduct the work related to polychemicals, but also conducted a series of examination related to the business, such as bio-solars technology, rater business, wind power business, and geothermal business, which are not related to polyiosiosiosiosiosiosioside.

(13) On April 24, 2007, Nonindicted Co. 1 concluded a memorandum of understanding on the intent to provide financial support between one bank and New Capital. However, the content thereof was undetained to the effect that it would review the feasibility until the end of December 2007, and would have an intent to participate in financial support according to the terms and conditions of the contract. After the conclusion of a memorandum of understanding, one bank, etc. decided to continue to receive relevant data from Nonindicted Co. 1, but Nonindicted Co. 1 did not provide relevant data at all, and there was no specific business between one bank, etc. and Nonindicted Co. 1, etc. after the conclusion of a letter of understanding.

(14) As seen earlier before and after the conclusion of a memorandum of understanding, Nonindicted Co. 1 did not collect information through Nonindicted Co. 8, dialogue experts, and did not make any specific preparation for the manufacture of poly-mixed, etc. except for the conclusion of a memorandum of understanding on the intention of non-detained financial support with one bank, etc., and there is no decision whether to construct poly-mixed factories in Korea or not to construct poly-mixed factories in Uzbekistan.

(15) Ultimately, around August 2007, the Republic of Korea and between the Republic of Korea and the non-indicted 1 corporation and the non-indicted 10 corporation agreed to negotiate with respect to the share ratio of the joint venture. While the above awareness of understanding was no longer recognized at the conclusion stage of negotiations, the Uzbekistan Government understood on November 2007 that the non-indicted 1 corporation was unable to obtain the right to develop Mazan and Mazan from Uzbekistan until it was confirmed that accurate data on the store quantity of Mazan and Mazan were confirmed, and it was not determined that the share ratio of the new joint venture corporation was not determined, but the non-indicted 1 corporation received the monopoly's right to develop Mazan and Mazan, and the shares of the non-indicted 1 corporation were 51% and the shares of the non-indicted 10 corporation were 19% and the shares of the non-indicted 10 corporation were provided to the media in the Republic of Korea and provided false information to the press at a meeting related to projects."

(B) Determination as to the falsity of each article of this case

(1) The Economic Technicians of February 27, 2007 each day.

In light of the above facts and the evidence duly admitted by the court below, although Non-Indicted 1 did not secure the right to monopoly of the mine development, the above report was finally reported as if it had been secured the right to monopoly of the mine development. The non-Indicted 8 witness of the court below visited the factory from October 2006 to examine whether the defendant and Non-Indicted 1 Co. 1's executive officers and employees of the non-Indicted 1 Co., Ltd. visited the factory to take over the public corporation in Uzbekistan, and during that process, the process of assembling and manufacturing solar spullars is merely a mere simple assembly and arrangement of solars, and it cannot be viewed as high-value industry. Thus, if the level of the machinery and equipment was too underdeveloped in 1980s in Korea, and the level of the machinery and equipment of the non-Indicted 1 Co. 2, 2007, the non-Indicted 1 stated that the acquisition of the spulpha was not determined due to the occurrence of the above spul 20% of the source technology.

2. The articles of Egyptian on March 7, 2007

The above facts and the evidence duly admitted and examined by the court below, namely, the solar chain company of the above report appears to refer to the solars company. However, even if the non-indicted 1 corporation did not have the right to extract from the ordinary mine, it was reported as if the company had the right to extract from the ordinary mine, and when the non-indicted 1 corporation did not have the right to extract from the ordinary mine, it was reported as if the company had the right to extract from the ordinary mine, and there was no proper discussion about the Solars at the time of the subordinate provision. However, although the discussion about the Solars company's acquisition of the shares 76% of the Solars company was not underway, it was reported as the fact that the above article was reported as the fact that the whole is different from the objective facts or exaggerated facts about the progress of the new business or the business that the defendant promoted as a whole.

3. The articles of Egymanian on April 17, 2007

In light of the following facts acknowledged by the above facts and the evidence duly adopted and examined at the court below, it is difficult to see that the securing of company is unnecessary in the manufacture of polydebins, but the defendant reported that "one of the maximum cases of solar batteries business is to secure the company which is a raw material to make batteries," and the defendant's new entry into the market is exaggerated in relation to the value of the regular mine development business or polydebinsium business that the defendant intends to enter the new market, and there is a false report to the effect that the non-indicted 1 corporation is actively involved in such leading activities as securing 70% of the total share in this Conbinsium, although it was not determined at all the share relationship for the regular development, the contents of the article are also different from objective facts or exaggerated facts about the value of the new business or the progress of the business that the defendant promotes as a whole.

(4) The economic engineer of April 27, 2007 each day.

In light of the above facts and the evidence duly adopted and examined by the court below, although there was no agreement between the parties on the share of the project, the joint venture to be established in Uzbekistan was finally reported to the effect that “H&T shall have 51%, 10%, and 30% equity by the Government of Uzbekistan and the Public Corporation,” and the net value of P&T ordinarily increased to 15% per ton as of 99% and above per to 99% per to 1 ton, it is merely the highest level of 99% or more per ton of nearby K&T as well as 90% high-level 9% high-level 10,000 to 99% high-level 9,000 high-level 9,000 high-level 9,000 high-level 9,000 high-level 9,000 high-level 9,000 high-level 9,000 high-level 9,000.

(5) An engineer of May 21, 2007, who was a shipbuilding inspector.

The above facts and the evidence duly adopted and examined by the court below, i.e., the following facts: (a) although it was still concluded only with the Republic of Uzbekistan government in relation to the acquisition of the mining development right, it was conclusively reported that “it was obtained the right to develop YY, which is the raw material for solar batteries, through consultation with the Government of the Republic of Uzbekistan,” and (b) it was virtually impossible to constitute a consortium in July since it was not implemented the feasibility study of the mine; (c) it was a large project carrying at least KRW 300 billion; (d) it was falsely or exaggeratedly reported as to the progress of the project by reporting that “it was a plan to form a consortium with a domestic manufacturer and a financial institution in July; and (e) it was a false or exaggerated report as to the degree of the progress of the project; and (e) in light of the fact that there was a false report as to the value of the company, the article also is also an objective or objective fact that the Defendant promoted the new project as a whole or its actual value.

6. The interview of the Korean Economic TV dated August 17, 2007

The above facts and the evidence duly adopted and examined at the court below revealed that Non-Indicted 1 Company was officially designated as an Uzbekistan mine development company within the Uzbekistan government. The defendant sent e-mail to Non-Indicted 11 on August 2007 and asked about whether he was qualified as a preferred bidder or as a different qualification. However, even though Non-Indicted 1 Company was finally designated as a Paule Development Company, which is the primary ingredient of Soraula, “Non-Indicted 1 Company was finally designated as a Paule Development Company. The Committee for the Development of Saul Resources in April 200, including the Saule Resources Development Committee for Soraula and the Committee for the Establishment of Saula and the establishment of joint ventures, which included specific results, etc. after concluding the understanding of the establishment of Saula and the establishment of a joint venture, the following remarks are also different from objective facts or exaggerations about the above project, as a whole, in light of the economic value of the project or the mine, and the correlation between the actual business.

(7) Articles of E-U.S. economy on August 30, 2007

The above facts and the evidence duly adopted and examined at the court below revealed as follows: (a) although Non-Indicted. 1 was officially confirmed to have been officially designated as an Uzbekistan mine development business entity in Uzbekistan, it was reported that “Non-Indicted. 1 was officially notified of it to the early August 201,” and (b) at the time of Jinsa mine was not finished with preliminary exploration, and did not construct an tegrative container factory; (c) even though the relevant technology was not secured at all, the production result of the tegrative container was generated until October; and (d) if it comes to a rapid increase, it would be incorporated and recruited investors by the end of this year. From the punishment to the end of this year, large enterprises would complete the pre-sale of the pre-sale. In light of all well-known facts, it would be considerably different from the objective facts or prospects of the above project, as a whole, to the extent that it could be feasible to complete the tegrative facility investment in 2010.”

(8) Articles 14-2 and 18-2 of the Inheritance and Factory Act (amended by Presidential Decree No. 2010, Sep. 13, 20

In light of the following facts acknowledged by the above facts and the evidence duly adopted and examined at the court below, i.e., polydecon’s raw materials, which are raw materials of Taeyang batteries. The recent new renewable energy is the field where the global interest in the whole world and the growth potential has increased, and the company’s proportion in and the nature or prospects of the business it intends to enter into, are excessively reported, and there was no formal confirmation that Non-Indicted. 1 was designated as a developing entity within Uzbekistan from the Republic of Korea, but the government was selected as a developing entity within Uzbekistan. Since it was not officially confirmed that Non-Indicted. 1 was officially designated as a developing entity within Uzbekistan from the Republic of Korea, it was reported to the effect that “It was paid 40,000 won after the conclusion of the understanding letter that it was possible to develop it.” Ultimately, the contents of the above article are different from objective facts about the progress of the business and the status of business or that it was grossly exaggerated.

9 Sub-committee

Therefore, in light of the overall context, a series of contents reported to the articles listed in the annexed list I of the original judgment, shall be deemed to be a false fact that is either objective facts or that is considerably exaggeratedly about objective facts in the part, such as the economic value of active mines in Uzbekistan, whether the status of an operator of active mine development, the economic relationship between regular and polypers and polypers, the possibility of the manufacture of polypers, and the timing of realizing profits. Therefore, the judgment of the court below to the same purport is justified.

(C) Judgment on the Defendant’s assertion

(1) Whether the defendant's interview contents coincide with the contents of articles

The Defendant argues to the effect that, in particular, the SIS SIS SIS, the portion which was a conclusive report on the shares held by Nonindicted Co. 1 Company, the portion which the Defendant secured the exclusive development right of Uzbekistan mine, etc., was written differently from the Defendant’s interview contents and the actual article, or was made by the reporter’s trend. However, in light of the fact that the article to the same purport was continuously and repeatedly reported through various media, as seen earlier, and the background leading up to the media of this case and the Defendant’s attitude after the report, etc. as described in the lower court’s detailed statement, each of the above articles are deemed to have been reported in accordance with the Defendant’s speech or intent, and thus, the Defendant’s assertion cannot be accepted.

② Determination as to the assertion that the content of the report on the quantity, degree, and economic value of ordinary mines conform to objective facts

After the Defendant’s revocation of the MOU on November 2007, the part on the store volume, net level, and economic value of YA mine was revealed to the effect that the Defendant did not spread false facts as to this part on the following grounds: (a) Nonindicted 11 concluded this Agreement with the Uzbekistan Government and developed a part of the mine in which Nonindicted 11 made this Agreement; and (b) the Defendant had much more store volume, net level, and economic value than the Defendant made a statement.

(1) According to the Sub-indicted 12, the non-indicted 12 of the lower court’s fact-finding report that, on May 23, 2008, there was three new mines with a scale of 100 million tons in Uzbekistan (100 million tons) around May 23, 2008. The non-indicted 12 of the lower court’s fact-finding report that, according to the results of the fact-finding on the non-indicted 12, three mines with a small scale of 3,00,000, 2 mines with a total of 50,000 tons, 3 mines with a total of 50,000 tons, 2 mines with a total of 2,00 tons, and 3 mines with a high scale of 110,000 tons, the non-indicted 11 of the witness of the first instance court is not deemed to be necessary to conduct an objective detailed investigation on the fact that it is not necessary after the fact-finding.

C. However, it is highly probable that the Defendant’s statement will be consistent with objective facts in light of the facts revealed after the date, as above, with respect to the store volume of the regular mine. However, the daily economy of April 27, 2007, among the contents of the crime list I attached to the court below, “the daily net net net net net net net net net net net net net net net net net net net net net net net net net net net net net net net net net net net net net net net net net net net net net net net net net net net net net net net net net net net net net net net net net net net net net net, it cannot be deemed that the report itself contains false economic values other than the store quantity, and it cannot be deemed that it conforms to objective facts.” In the Korean Economic TV broadcast of August 17, 2007, “the results already announced on the premise of securing raw materials of 10,000 tons at the beginning shall be deemed to have been sufficiently raised.” In light of the context before and after the statement, the contents of the report include merely a statement about the store volume of the mine, and its economic outlook, and the contents.

③ Determination as to the assertion that a statement about the value of an ordinary mine is merely an assessment of the defendant

Although the Defendant asserts that the part stating the value of 10 billion won is merely an assessment of the value of the business, the Defendant’s assertion that the representative director of one company conducts an interview on the business newly promoted, and the statement on the economic value of the business cannot be deemed as merely an individual’s expression of opinion, and rather, is an important impact on investors. Therefore, the Defendant’s argument cannot be accepted.

(2) Determination as to whether to obtain unjust benefits

(A) Facts and determination of recognition

원심에서 적법하게 조사하여 채택한 증거들에 의하여 인정되는 다음과 같은 사정 즉, ① 피고인은 2006. 6. 30. 공소외 1 주식회사 주식을 액면가 500원의 13배가 넘는 주당 6,800원을 공모가로 하여 코스닥에 등록을 하였으나 주가가 오르지 않고, 오히려 2006. 7.경에는 주가가 4,000원대로 공모가보다 더 떨어져 주변의 투자자들로부터 불평을 듣고 있었던 점, ② 이에 따라 피고인은 주가를 끌어올리기 위한 방편으로 2006년 말 일반 주주들에게는 주당 300원, 최대주주와 특수관계인은 100원의 차등배당을 실시하였고, 2007. 1.경에는 공소외 1 주식회사 상무인 공소외 2에게 공소외 1 주식회사 주식 매입을 지시하여 임직원들 명의의 차명계좌로 주식을 매수하기도 하였으며, 2007. 1. 12. 자기주식 취득을 결정하여 공시하기도 하였으나, 주가에는 별다른 영향을 미치지 못하였던 사실, ③ 피고인 스스로도 상장 후 공소외 1 주식회사의 주가가 공모가 보다 훨씬 떨어져 주가에 관심을 갖게 되었다고 진술하고 있고, 원심 증인 공소외 13 역시 공소외 1 주식회사 주가가 실적 대비 저평가되어 있다는 고민을 공소외 2를 통하여 여러 차례 들었고, 피고인이 주가가 안 올라서 고민한 것을 알고 있다고 진술하고 있는 점, ④ 피고인은 2007. 2. 27.경부터 공소외 1 주식회사의 주식을 피고인의 실명으로 1,540,846주, 임직원의 차명으로 217,311주를 각 보유( 공소외 1 주식회사 주식의 22.17%)하고 있었고, 피고인이 주식의 85%를 보유한 공소외 4 주식회사가 공소외 1 주식회사의 주식을 2,988,694주를 보유( 공소외 1 주식회사 주식의 37.04%)하고 있었으며, 공소외 1 주식회사의 대표이사로서 공소외 1 주식회사의 주가와 관련하여 가장 큰 이해당사자인 점, ⑤ 공소외 1 주식회사는 하드디스크 드라이브 부품 중 하나인 HSA(Head Stack Assembly)를 제조하여 ○○전자에 판매하는 기업으로서, 공소외 1 주식회사의 2005년 매출 중 ○○전자 관련 매출 비중은 99.41%, 2004년 매출비중은 98.79%, 2003년 매출비중은 99.27%여서 ○○전자 관련 매출이 절대적이었는데, 2007년경부터 공소외 1 주식회사는 유일한 납품처인 ○○전자가 주력품목을 변경하면서 ○○전자로부터 주문이 급감하여 매출과 이익이 급감(2007년도에는 전년도 대비 연매출이 45.4% 줄어들고, 당기순이익이 86.67% 하락하였고, 2008년 3/4분기까지의 영업이익이 13억 2,600만원의 적자로 전환하였으며, 영업외 손실을 포함한 당기순손실이 227억 1,600만원에 달하였다)하였던 점, ⑥ 그러한 상황에서 피고인은 앞서 본 바와 같이 2007. 2. 27.경부터 언론인터뷰를 통하여 원심 별지 범죄일람표 Ⅰ기재와 같이 우즈베키스탄 규사광산 개발 사업과 관련하여 허위이거나 객관적인 기사를 크게 과장한 호재성 기사나 인터뷰를 집중적, 반복적으로 보도되게 한 점, ⑦ 공소외 1 주식회사는 그 무렵인 2007. 3.초순경 100% 무상증자를 발표하고 이를 공시한 점, ⑧ 피고인은 공소외 1 주식회사의 주가가 오르기 시작하자 2007. 5.경부터 차명주식을 매도하기 시작한 점, ⑨ 피고인은 공소외 1 주식회사의 주가가 급등하기 시작한 2008. 7. 이후에도 위와 같은 호재성 기사나 인터뷰가 계속 보도되도록 한 점, ⑩ 피고인은 공소외 1 주식회사의 주가가 비정상적으로 급등하고 있는 상황에서도, 2007. 9. 13. 조선일보 이코노미플러스 기자와 인터뷰를 하면서 어느 정도 수익을 얻을 수 있는가라는 기자의 질문에 대하여, ‘수십조 원을 벌 수 있다’고 하고, 사업의 리스크와 관련하여 ‘사업 진행이 안 될 정도로 리스크가 있는 것은 아니고 어떤 사업이라도 하다 보면 리스크는 다 있는 것이니까, 리스크가 있겠지만 사업이 잘 되면 굉장한 수입이 발생할 것이다’라는 취지로 이야기하여 계속하여 사업의 전망을 과장한 점, ⑪ 그로 인하여 2007. 10. 5. 공소외 1 주식회사의 주가가 7만 원을 넘자 피고인은 자신의 실명주식 13만 주를 매도한 후 공소외 1 주식회사 홈페이지에 ‘회사의 추가 성장 동력의 확보를 위해 자금확보가 필요하여 적절한 시기에 피고인 개인이나 공소외 4 주식회사의 주식 중 일부를 블록세일 형태로 장내 혹은 장외에서 매각하는 방안 등을 검토하고 있다’는 취지의 글을 게재하였고, 그 후 다음 거래일인 2007. 10. 8. 공소외 1 주식회사의 주가가 한때 8만 원을 넘자 자신의 실명주식 27만 주를 매도하였으며, 2007. 10. 5.과 10. 8.의 매도로 피고인이 얻은 매도대금은 34,359,000,000원에 이르는 점, ⑫ 한편, 피고인은 주가가 오르기 시작하자 실명주식 매도 이전인 2007. 5.경부터 차명주식을 매도하기 시작하여 주가가 급등한 이후인 2007. 9.경에 집중적으로 매도하여 보유하고 있던 차명주식 대부분 매도함으로써 주가에 충격을 주지 않으면서도 9,098,446,650원에 매각할 수 있었던 점, ⑫ 그 결과 2007. 2. 27. 주당 3,880원을 시작으로, 광산개발 양해각서 체결 공시일인 2007. 4. 19. 5,830원을 거쳐 ‘정식사업자로 선정되었다’고 발표한 2007. 8. 17.(한국경제TV 인터뷰) 15,800원, 9. 13. 34,500원, 피고인이 주식을 매각한 10. 8. 장중 최고 89,700원까지 주가가 급등하게 하는 등 2007. 2. 27. 대비 2,000% 이상 주가가 상승하여, 2007. 기준 매출 900억 원, 당기 순이익 13억 원에 불과한 공소외 1 주식회사가 한 때 시가 총액 1조 원을 초과하는 코스닥시장 2위 규모의 회사가 되기도 한 점 등에 비추어 보면, 결국 피고인에게는 적어도 허위사실을 유포하기 시작한 2007. 2. 27.경부터 부당한 이득을 얻을 목적이 있었음을 넉넉히 인정할 수 있다 할 것이다.

(B) Judgment on the defendant's assertion

① Judgment on April 24, 2007 on the block rent of 100,000 tons

In light of the fact that the Defendant sold 1 million won on April 24, 2007 in the block set at 5,370 won, prior to the public announcement of the conclusion of an understanding note with Uzbekistan, the Defendant asserts that the Defendant did not have an intention to obtain unjust benefits of prisoners of war.

According to the evidence duly adopted and examined by the court below, the defendant sold 100,00 shares to the 20th of April 24, 2007 and announced it to the public around that time. On the other hand, in relation to the process of the prosecutor's investigation, the defendant stated that "it was seriously affected by the 100,000 shares without any money, education problems, study study, etc., and the family register was not arranged to ensure that 10,000 shares were actually distributed to the 20th of April 24, 200, and that it was necessary to divide the shares into 60,000 shares to the 10th of April 24, 2007 to the 10th of the above 6th of the 10th of the 6th of the 6th of the 6th of the 6th of the 6th of the 10th of the 6th of the 10th of the 6th of the 10th of the 6th of the 6th of the 10th of the 1st of the 10.

(2) Determination on the fact that there was no defendant's active purchase of shares

The Defendant asserts that there was no purpose of gaining unjust profits in light of the fact that the share price increase requires a large volume of increase in demand, that is, Nonindicted Co. 1, who merely sold the shares of Nonindicted Co. 1, who held the shares, and did not purchase the shares.

Therefore, Article 188-4 (4) 1 of the Securities and Exchange Act only prohibits the act of spreading false market prices or false facts or other rumors or using deceptive schemes with respect to the sale and purchase or other transaction of securities. In doing such act, since there is a risk that the investor's interest is infringed and that the formation of a fair and free securities market is obstructed, it does not necessarily require an active mass gathering act as alleged by the defendant. (b) It is possible for the defendant to encourage other persons to purchase shares even if the defendant does not purchase shares in order to support the company. (c) The fact that the defendant himself as the major shareholder of the non-indicted 1 corporation and the representative director of the non-indicted 1 corporation and was in a position to encourage the purchase of shares sufficiently through public announcement or public relations with the press. (d) The defendant has already been holding about 60% of the shares of the non-indicted 1 corporation through his name, name, and the non-indicted 4 corporation with 85% shares, and thus, it is difficult to view that the defendant does not have any other purpose to purchase shares.

(3) The judgment on the fact that the defendant expressed warning and fear to investors through an interview of journalistss.

In light of the fact that the Defendant sent several warnings and concerns to prevent investment in the course of a journalist interview, the Defendant asserted that there was no purpose of gaining unfair profits in light of the fact that he sent several warnings and concerns to prevent investment, and according to the evidence duly adopted and examined by the lower court, the Defendant’s interview with the Korean Economic TV on August 17, 2007, stating that “resources development projects are more respected as it is possible to cause business changes according to the feasibility study,” and the Defendant’s interview with the purport that “The resources development projects are more respected as it is possible to do so,” in the article of the Economic Gaocoo on August 30, 2007, it is reasonable to view that the investors are able to observe with time because of the fact that it would not immediately produce polydecons with the fact that the investors would have been able to observe and observe the same.” If the Defendant’s interview with the same purport is more than 10 years, it should be seen that the investors are more than 20 years of shares.

However, in light of the fact that the Defendant’s statement to the extent that it is right to merely make an investment without disclosing the actual state of the progress of projects related to Uzbekistan is difficult to function as a true and warning function for general investors, and the Defendant’s statement to the extent that the Defendant’s statement to the extent that it was just to make an investment, and the Defendant’s above warning statement to the extent that all except for a large volume of shares sold after the Defendant sold his shares in a large quantity, it is difficult to view that the Defendant’s statement to the extent that the Defendant made the above warning statement does not intend to gain unjust benefits.

④ Determination as to the sale of shares on September 2007 and the sale of shares on October 5, 2007 and October 8, 2007 and the visit on October 11, 2007

In light of the fact that on September 2007, the Defendant reported to the Securities and Futures Exchange that Nonindicted Co. 1 was abnormal in the share price, and attempted to announce it to the public, the Defendant rejected it at the Securities and Futures Exchange, and eventually, on October 5, 2007, sold 40,000 shares on his own on October 8, 2007 in order to file a petition for the share price, and thereafter, on October 11, 2007, at the request of the press conference on October 11, 2007, issued a warning to the investor that “the share price was sold in order to warn the stock price by excessively raising the share price, and is presumed to have the ability to operate the share price,” the Defendant argued that there was no purpose to gain unjust profits.

Therefore, the Defendant, around September 17, 2007, demanded the Securities Futures Exchange to make a public announcement of Nonindicted Co. 1’s shares. On the other hand, on the other hand, from September 17, 2007 to September 19, 2007, the Defendant sold the borrowed-name shares held by himself intensively between himself and September 19, 2007. If the Defendant first sold his own shares to stabilize the stock price, he sold 1% or more of the shares issued by Nonindicted Co. 1’s first sale on October 5, 2007. However, it is difficult to view that Nonindicted Co. 1 sold the shares of 130 million shares to the effect that he first sold them to the public. In light of the fact that Nonindicted Co. 1 was already designated as an investment warning issue and that Nonindicted Co. 1 sold shares of 70 million won or more for the purpose of purchasing investment risk of 10 billion won or more, it is difficult to view that Nonindicted Co. 1’s shares were already known to the effect of 700 billion shares.

(3) Determination of intention

(A) Article 188-4 (4) 1 of the Securities and Exchange Act refers to the recognition of false market price or false facts or other rumors. The contents reported to the articles in the articles in the attached list I of the crime list of the court below are different from objective facts or false facts that are about about the part of the company's economic value, whether the company's status was confirmed or not, the economic relationship between the company's history and metrology, the possibility of the business for the manufacture of polymers and polymers, and the timing of realizing profits. Furthermore, in order to diversify the business for the survival of the company as a professional manager, the defendant concentrated considerable interest in the development of Mamers and polymers, and the subsequent production of polymers and polymers, which are far less than the company's performance, and the defendant actively changed the contents of the article in the attached list of the crime list of the court below and actively made it known to the foreign journals about the contents of the article 18 of the Securities and Exchange Act.

(B) On this point, the Defendant alleged to the effect that the Defendant did not recognize that the Defendant was false because the content of the report on the price of the company was confused with the company’s company and the company’s office and caused mistake. However, the Defendant had an interest in the business of developing the company’s company since 2006, actively interviewed the journals in relation to the company’s business from February 27, 2007, and concluded a letter of understanding on the business of developing the company’s company around April 19, 2007, in light of the fact that the Defendant did not distinguish the company’s office and the company’s office until April 27, 2007, and did not easily understand that the term was used in combination with the company’s office and the company’s office and the company’s office and the company’s office and office.

C) Determination as to the fraudulent fraudulent transactions through the use of false document

(1) Determination as to whether the facts charged are specified

(A) The purport of the law that allows the court to specify the facts charged by specifying the time, place, and method of a crime is to limit the object of a trial against the court and to facilitate the exercise of its defense by specifying the scope of defense against the defendant. As such, the specification of the facts charged is sufficient if a certain part of the facts charged is clearly stated in light of the time, time, place, method, purpose, goods, etc. to the extent that it can distinguish the facts underlying the prosecution from those of other facts charged, and even if it is somewhat unclear, the validity of the prosecution as long as the facts charged can be specified by other matters indicated in the facts charged is not affected (see Supreme Court Decision 86Do2260, Jan. 20, 1987).

(B) In the case of this part of the facts charged, the prosecutor's statement "public notice of July 6, 2006" and "report on stocks owned by officers and major shareholders of March 26, 2007" (the prosecutor clarified this on the 11th public trial date of the lower court, and see, e.g., the trial records of the lower court). The date and time, mode, and contents of misunderstanding caused by using false documents are not likely to cause confusion with other crimes and are specified to the extent that it does not interfere with the defendant's exercise of right to defense. Thus, the defendant's assertion is without merit.

(2) Determination as to whether the transaction is an important matter

(A) The term "material fact" under Article 188-4 (4) of the Securities and Exchange Act means a fact that may have a significant impact on the property and management of the corporation in question, or on the fair trade in securities and the protection of investors, which may have an impact on investors' investment judgment (see Supreme Court Decision 2005Do8652, Feb. 9, 2006).

(B) According to the evidence duly examined and adopted by the court below, the defendant submitted the "report on the ownership of an executive officer or major shareholder" on July 6, 2006 and March 26, 2007. The defendant reported only the real name shares of the non-indicted 1 corporation held at the time of listing on KOSDAQ on June 30, 2006 and offering new shares on March 22, 2007, and did not make a report on the change in the ownership of the borrowed shares held under the name of the executive officer or employee as shown in the annexed Table II of the court below. Based on this, the judgment of the court below was justified in finding that the defendant did not have any significant influence on the investment decision of the non-indicted 1 corporation as stated in the annexed Table II of the court below, and it was found that the non-indicted 1 corporation had any negative influence on the investment decision of the executive officer or employee as stated in the annexed Table I, as well as on the issue of whether the investment decision of the defendant was made or not.

(3) Determination as to whether it constitutes an act of use

(A) Defendant’s assertion

The defendant's act is not subject to the provisions of Article 188-4 (4) 2 of the Securities and Exchange Act which violates the provisions of the act of using false or fraudulent documents, even in a case where a document stating the information disclosed in the past or the information is no longer true due to a new fact or change in circumstances revealed thereafter, or where a document stating such information is no longer false or false and has already been made without correcting it. The defendant's act is merely the use of a report by omission, which has been neglected from February 27, 2007 to October 107, 2007, and thus, it does not constitute the use of a report under Article 188-4 (4) 2 of the Securities and Exchange Act.

(B) Determination

(1) Article 188-4 (4) 2 of the Securities and Exchange Act provides that once interpreting the language and text, insofar as false or fraudulent documents concerning material facts such as “in order to gain money and other economic benefits by inducing misunderstanding of others,” the crime of violating the above provision is established immediately. Whether false or deceptive documents subject to use are existing documents or documents newly drawn up or not shall not affect the establishment of the above crime. Thus, the defendant’s assertion in this part is without merit.

② As seen earlier, the Defendant began to spread false facts in order to gain unjust profits on February 27, 2007. After then, on March 22, 2007, the Defendant was allocated new shares 1,540,848 shares by the decision of free capital increase by Nonindicted Co. 1’s executives and employees, and on March 26, 2007, submitted “report on stock holding by executives and major shareholders”, only 3,081,692 shares under his name were stated in his name, and on the method of omitting 479,62 shares held by his employees. Since the share price increase, as stated in Appendix II of the attached Table II of the lower judgment, it is difficult to see that the Defendant’s act of falsely selling the previous shares held by his employees under his name without performing the “report on stock holding,” and that the Defendant’s act of falsely indicating that the Defendant’s act constitutes an act of disposal at a certain time from the date of the Defendant’s act of disposal to the date of the Defendant’s act of disposal.

(4) Determination of causation and intentional existence

(A) Legal principles

Article 188-4 (4) 2 of the Securities and Exchange Act was originally regulated in the form of a crime of "acquisition of money or other economic benefits by inducing misunderstanding of another person by making false representation of any material fact or omitting any necessary fact." In January 13, 1997 (No. 5254) the amendment changed in the form of a crime of "an act of inducing misunderstanding of another person by making false representation of any material fact or making use of document with omission of any necessary fact to make another person gain money or other economic benefits." As long as it used false or false statements concerning material fact "in order to obtain money or other economic benefits by inducing misunderstanding of another person," the crime of violation of the above provision is established as soon as it is based on the interpretation of the language and text, and the actual use of document does not require "an act of causing misunderstanding of another person," or "an act of making another person gain money or other economic benefits," and thus, it does not affect the establishment of causation between the false or fraudulent act of misunderstanding and the use of another person.

In addition, it is reasonable to interpret the unfair benefits under Article 188-4 (4) of the Securities and Exchange Act as a comprehensive concept including not only the individual and tangible economic interests of an actor due to the disposal of securities, but also the passive benefits such as the acquisition of management rights, the securing of control, and the increase of status within the company, and the passive benefits such as the avoidance of losses (see Supreme Court Decision 2003Do686, Nov. 14, 2003, etc.). It is sufficient to interpret it as a comprehensive concept including not only the passive benefits such as the case of avoiding losses, but also the unrealistic future benefits (see Supreme Court Decision 2003Do686, Nov. 14, 2003, etc.). The purpose of inducing misunderstanding another person to gain money or other economic benefits is not related to the existence or purpose of other purposes, but also it is sufficient that the degree of perception of that purpose is not required to be active or final recognition (see Supreme Court Decision 2001Do606, Dec. 12,

(B) Determination

The following circumstances acknowledged by the evidence duly examined and adopted at the court below: (i) the defendant provided objective information different from the facts through an interview of journalists or publicly announced the plan to conduct such business in an uncertain future; (ii) the defendant submitted a report on the stocks held by executives or major shareholders on July 6, 2006 and March 26, 2007, without reporting the borrowed stocks held by the defendant in the name of his executives or employees; (iii) the investors were unable to know whether the defendant owns the borrowed stocks or whether the stocks were sold; and (iv) the defendant did not know that there was a significant change in the price of the stocks held by his defense counsel in the name of his defense counsel before the sale of the stocks held by his real name on October 5, 207 and October 8, 2007.

D) Determination as to "the calculation of the amount of profit and causation" which are the basis of statutory penalty

(1) Determination as to whether the proviso of Article 207-2 (1) and (2) of the Securities and Exchange Act are unconstitutional or not

(A) The applicable law

The proviso of Article 207-2 (1) of the Securities and Exchange Act provides that when the amount equivalent to three times of the profit or loss avoided by the act of violating Article 188-4 of the Securities and Exchange Act exceeds twenty million won, the person shall be punished by a fine not exceeding the amount equivalent to three times of such profit or loss amount evaded. Article 207-2 (2) of the Securities and Exchange Act provides that the profit or loss avoided by the act of violating Article 188-4 of the Securities and Exchange Act shall be punished by imprisonment for a limited term of not less than three years if the profit or loss avoided by the act of violating Article 207-2 (1) of the Securities and Exchange

(B) Defendant’s assertion

With respect to the interpretation of "profit from a violation" under the proviso of Article 207-2 (1) and Article 207-2 (2) of the Securities and Exchange Act, the court of the court below determined that the profit from the violation refers to the profit from a transaction related to the violation. It does not necessarily mean that there is a direct causal relationship with the violation, but it constitutes a profit from a transaction involved in the violation. However, the former Securities and Exchange Act (amended by Act No. 6695 of Apr. 27, 2002) increases the upper limit of the fine according to "the profit from the violation." On the other hand, the current Securities and Exchange Act (amended by Act No. 6695 of Apr. 27, 2002) increases the upper limit of the fine due to "the profit from the violation." In addition, if the profit amount exceeds 50 million won, the lower limit of the punishment by imprisonment with prison labor for life or for more than 5 billion won shall be set, and even in such a case, the former Securities and Exchange Act shall be null and void.

(C) Determination on the constitutionality of a statute

① Inasmuch as the selection of the statutory penalty is recognized as broad legislative discretion, it shall not be readily concluded that the statutory penalty for a certain crime is in violation of the Constitution, unless it clearly violates the principle of equality and the principle of proportionality under the Constitution, such as the nature of the crime and the responsibility of an offender, and thus, significantly lose balance in the criminal system, or deviates from the degree necessary for achieving the original purpose and function of the punishment (see Constitutional Court Order 91Hun-Ba1, Apr. 20, 1995).

② Since the market price gains generated by a person who committed an act prohibited by the law, such as market price manipulation, are more likely to be subject to criticism against such act, the gains from the act of violation are important factors for determining the severity of criminal liability. The instant provision is not an individual’s legal interest, but a fair trade order in the securities market, and thus, the scope of liability for damages suffered by the other party to the act in the transaction with the violator is determined, or is not a provision to deprive or recover the other party of the amount of profits directly related to the violation. As such, in determining the statutory penalty, only the amount of profits directly related to the violation should be considered as the requirement for the change. Thus, it cannot be concluded that the instant provision is against the principle of liability to determine the scope of statutory penalty based on the market price gains, which are the factors recognized as reasonable, among various factors that may affect the seriousness of the liability of the violator.

③ Furthermore, Article 207-2(2) of the Securities and Exchange Act (hereinafter “Securities Exchange Act”) provides that if an illegal profit is acquired through unfair trading such as manipulation of market prices with respect to the trading of securities listed on the securities market or registered on the Association brokerage market, such unfair trading has a great impact on unspecified number of securities investors, thereby preventing and causing negative impacts on the national economy. On the other hand, the penalty is weak and has not been eradicated, and thus, it is highly likely to distort and congested the economic order due to the failure to prevent recidivism. As such, it is a newly established provision in order to prevent such economic side effects by strengthening the punishment. In light of the legislative purport, current average income level of Korean citizens, it cannot be readily concluded that the statutory penalty under the above Act is more than a person who has committed an unfair trading, such as economic value of KRW 500 million or five billion, general public’s sentiment on a criminal offender, and criminal policy aspect to prevent the harm to many unspecified investors, etc.

④ In the case of Article 207-2(2) of the Securities and Exchange Act, even if the lower limit of the statutory penalty was set at a higher level, it should be deemed to be the legislator’s decision. Such decision of legislators is difficult to regard it as arbitrary beyond the limit of legislative discretion, and in accordance with the above provision, it is possible to render a suspended sentence through discretionary mitigation depending on the case, and in this regard, it cannot be deemed that the statutory penalty has been too excessive to the extent that it would have lost its balance in the criminal system.

⑤ Therefore, the provision of this case, which sets the statutory penalty on the basis of market price marginal profit generated in the transaction where the violation was involved, not limited to the interests directly related to the violation, can be the most important and reasonable standard even though the large and low market price marginal profit is not the sole standard. In light of the above provision’s loss of balance of the punishment system, it cannot be deemed as violating the principle of no punishment without the law, or contrary to the principle of liability or proportionality of the penal law, and thus, the defendant’

(2) Determination of the relevance between the dissemination of false facts, the use of false documents and the increase of stock prices

(A) The term "profit from a violation" under the proviso of Article 207-2 (1) and (2) of the Securities and Exchange Act refers to the profit from a transaction involved in the violation (see Supreme Court Decision 2002Do1256, Jun. 14, 2002). It does not necessarily mean that there is a direct causal relationship with the violation, but it constitutes the profit from a transaction involved in the violation (see Supreme Court Decision 2004Do1628, Sept. 3, 2004).

(B) According to the evidence duly adopted and examined at the court below: ① from February 27, 2007, the Defendant spreads false information as indicated in the list of crimes I; ② from July 6, 2006 to March 26, 2007, Nonindicted Co. 1, 2006, the Defendant used the false information as indicated in the list of crimes No. 200 billion won; ② from around 6, 2007, the total sales amount of Nonindicted Co. 1, 206, the Defendant’s 200 billion won, 70 billion won, and the Defendant’s 200 billion won, 70 billion won, and the 10.5 billion won, the 205 billion won, which was 10 billion won, were 5 billion won, and the 20.5 billion won, which was 10 billion won, was 5 billion won, and the Defendant’s 100 billion won, which was 5 billion won, was able to have been ever sold.

(다) 나아가 원심에서 적법하게 채택하여 조사한 증거들에 의하면, ① 공소외 15는 자신이 운영하는 한국투자연구소 회원들로부터 회비를 받고 투자상담을 해 주거나, 상당한 강의료를 받고 회원 및 비회원을 상대로 강연을 하면서 특정 종목을 추천하기도 한 사실, ② 한국투자연구소의 회원수는 2007. 6.경에는 300-400명 정도, 2007. 9.경에는 700-800명 정도였던 사실, ③ 공소외 15는 2007. 5. 중순경부터 공소외 1 주식회사 주식 매수를 권유하기 시작하였으며, 2007. 6. 6.부터 순회 강연시 집중 매수 의견을 제시하는 등 본격적으로 공소외 1 주식회사 주식의 매수를 권유한 사실, ④ 공소외 15는 2007. 8. 18. 매일경제신문와 한국경제신문에 ‘ 공소외 1 주식회사 우즈베키스탄에서 국내 대그룹 모기업을 물리치고 본계약 체결’이라는 내용의 광고를 게재한 사실, ⑤ 2007. 8. 25. 같은 신문에 ‘폴리실리콘 가격이 천정부지로 치솟고 있다. 폴리실리콘 확보 태양광업계 초비상’이라는 내용의 광고를, 2007. 9. 1.에는 같은 신문에 ‘폴리실리콘 가격이 천정부지로 치솟고 있다. 폴리실리콘 확보 태양광업계 초비상’이라는 내용과 함께 ‘폴리실리콘 원재료 규사광산에 공소외 1 주식회사’라고 하여 다른 업체들과 함께 공소외 1 주식회사를 소개하는 광고를 게재한 사실, ⑥ 공소외 15는 2007. 9.초순경부터는 “몰빵”이라는 표현까지 사용하면서 한국투자연구소 회원들이나 자신의 강의에 참석한 사람들을 상대로 적극적으로 공소외 1 주식회사 주식의 매수를 권유하였던 사실, ⑦ 이에 따라 공소외 15는 2007. 9. 8. 매일경제신문과 한국경제신문에 ‘왓컴테마주 대장주 공소외 1 주식회사 5,000원부터 매집 금요일 종가 39,650원 수익률 793% 진행 중’, ‘ 공소외 1 주식회사 태양에너지 사업진행 추이 및 향후일정, 2007. 4. 10. 우즈베키스탄 지질위원회, PHONON 등과 규소개발 사업 위한 MOU 체결, 5월 24일 우즈베키스탄 프로젝트 관련 하나은행 등과 PF 양해각서 체결, 8월 17일 우즈베키스탄 자원위원회로부터 규소광산 개발업체로 최종 지정, 9월 4일 PHONON 등과 규소 개발 사업 추진일정에 관한 합의서 체결, 10월 3일 지질광물탐사 작업 시행안 결정, 2008. 1. 3. 산업용 실리콘 생산을 위한 설비구축’ 등의 내용을 담은 광고를 게재한 사실, ⑧ 공소외 15는 2009. 9. 22.에는 같은 신문에 공소외 1 주식회사의 공시 내용과 함께 ‘와컴테마주(신재생에너지)의 대장주 공소외 1 주식회사 5,000원부터 매집 금요일 44,000원 수익률 880% 진행 중’이라는 내용의 광고를 게재한 사실, ⑨ 공소외 15는 2007. 9. 29.에는 매일경제신문과 한국경제신문에 공소외 1 주식회사의 공시내용과 ‘한국투자연구소 공소외 15 회장 10월 우즈베키스탄 규사 광산 직접 탐사 추진 중’이라는 내용의 광고를 게재한 사실, ⑩ 2007. 10.초경에는 공소외 11의 자서전을 자비로 구입하여 강연회에 참석한 회원들에게 나누어 주면서 공소외 1 주식회사를 추천하기도 한 사실, ⑪ 2007. 10. 6.에는 매일경제신문, 한국경제신문에 ‘ 공소외 1 주식회사 우즈벡 규사광산 확보’ 등의 내용과 ‘ 공소외 11과 우즈베키스탄 대통령이 호형호제하는 사이’라는 등의 내용의 광고를 게재한 사실, ⑫ 2007. 5. 공소외 1 주식회사 전체 거래량 대비 한국투자연구소 회원의 매수 비중은 평균 3.76%이었고, 공소외 15가 공소외 1 주식회사 주식 매수를 본격적으로 권유한 2007. 6.부터 2007. 7.경까지 회원매수비중이 7.6%이었으며, 2007. 8. 13. 회원매수비중이 23.36%이었고, 2007. 9. 3.부터 2007. 10. 4.까지의 기간에는 회원매수비중이 평균 12.41%이었던 사실을 각 인정할 수 있고, 당심 증인 공소외 14, 16의 증언에 의하면, 공소외 1 주식회사 주가는 2007. 7. 중순경부터 통계적으로 유의하게 실제 주가가 정상주가 이상으로 형성되었으며, 2007. 9. 상반기부터 2007. 10. 상반기에는 이러한 비정상적 주가 상승 움직임이 가속화된 것으로 보이는 점에 비추어 보면, 결국 2007. 9.경부터의 공소외 1 주식회사 주가의 급격한 상승에는 공소외 15가 운영하는 한국투자연구소 회원 등 투자세력의 집중적인 매수가 상당 부분 영향을 미쳤음을 인정할 수 있다.

However, in light of the following circumstances acknowledged by each of the above evidence, ① the defendant's act of making investment decisions on non-indicted 1 corporation, including non-indicted 15, and investment recommendations to its members, was directly due to the expectation of the economic value of the labor journalist, the gambling of the labor journalist, and the reduction of risks to the conclusion of the contract due to the selection of the labor journalist, and ② the defendant's act of using non-indicted 1 corporation as a false and non-indicted 1 corporation's investment advisory team's advertisement around July 19, 207, and around August 17, 207, 2007, the defendant was unable to know the above fact that the non-indicted 2 corporation's act of using non-indicted 1 corporation's securities market and the non-indicted 1 corporation's market share price increase in the 7th market price. The defendant's act of using non-indicted 1 corporation's market share price increase in the 7th market price of this case was clearly announced from the 15th market price of this case.

Therefore, the judgment of the court below to the same purport is justified.

E) Determination as to the number of crimes

The Defendant continued to spread false facts through a journal interview and repeated unfair trading practices, such as making use of false statements, in order to gain unjust profits, and each of the above acts constitutes an inclusive crime of violation of Article 188-4 (4) of the Securities and Exchange Act, by including all of the above acts. Therefore, the lower court is justifiable to have regarded this part as an inclusive crime.

2) Determination on the violation of the Securities and Exchange Act due to the use of undisclosed information

In light of the following circumstances acknowledged by the evidence duly investigated and adopted by the court below, ① Nonindicted 2, who was instructed by the Defendant to review the procedure, etc. for acquiring its own stocks from the Defendant on January 1, 2007, ordered him to re-examine Nonindicted 17, etc.; ② Nonindicted 2 purchased 30,000 shares of Nonindicted Co. 1 in the name of Nonindicted Co. 4 under the name of Nonindicted Co. 5 and the name of Nonindicted Co. 4 managed by him, respectively, on January 107, 2007; ③ Nonindicted Co. 1 was able to obtain information on Nonindicted Co. 5’s own stocks at least 129,032 shares to be acquired; ③ Nonindicted Co. 1 was also able to obtain information on Nonindicted Co. 1’s own stocks under the name of Nonindicted Co. 5’s request; ② Nonindicted Co. 2 was able to obtain information on its own stocks from Nonindicted Co. 1, 2007 to 207, and ④ Nonindicted Co. 18’s.

3) Determination on the violation of the Public Official Election Act

A) Determination as to whether the defendant was aware of the existence of the borrowed name property

(1) According to the evidence duly adopted and examined by the court below, the defendant confirmed the registration documents of the candidate for the National Assembly member, such as the report on the property of the candidate for the election of public officials, which was prepared in advance with the direction of the non-indicted 19 and the non-indicted 8, and received them to the Integrated Democratic Party on March 18, 2008. The Integrated Democratic Party received the report en bloc to the National Election Commission on March 26, 2008, and registered on March 6, 2008 in the order of candidates for proportional representative National Assembly members to the Integrated Democratic Party. ② As of December 31, 2007, the above report on the property of the candidate for public office was omitted, and ③ The above borrowed property was managed by the non-indicted 2 under the defendant's direction. Thus, at the time when the defendant prepared and received the report on the property of the candidate for public office, there was awareness of the existence of the above borrowed property.

(2) The defendant alleged that he would donate the borrowed stocks under the name of ordinary executives and employees to the nominal owner if they are extremely open to the public, and that since the defendant actually donated the borrowed assets under the name of executives and employees to the nominal owner before the property declaration, at the time of the property declaration, the defendant did not recognize that the borrowed assets under the name of executives and employees were owned by the defendant. According to the evidence duly examined and duly adopted by the court below, from May 2007 to March 25, 2008, the defendant stated that he would donate the borrowed assets to the nominal owner if they are extremely open to the borrowed stocks under the name of executives and employees, and delivered the passbook and seal of the borrowed assets under the name of the non-indicted 2 to the executives and employees around March 25, 2008. However, even if there is room to view that the defendant delivered the passbook and seal of the proceeds from the sale of the borrowed stocks to the executives and employees around March 25, 2008, it cannot be accepted as the defendant's property declaration of the above political party.

B) Determination as to whether the purpose is to be elected

(1) Article 250(1) of the Public Official Election Act provides that a punishment shall be imposed in cases where false facts are publicly announced with respect to candidate’s career so that the candidate can be favorable for the purpose of election or getting elected. Here, false facts are sufficient if they are inconsistent with the truth and have physical strength so that the elector can make accurate judgment on candidate (see Supreme Court en banc Decision 2001Do6138, Feb. 20, 2003; Supreme Court Decision 2007Do4294, Aug. 24, 2007; Supreme Court Decision 2007Do4294, Aug. 24, 2007; Supreme Court Decision 2006Do7473, Jan. 15, 2007; Supreme Court Decision 2006Do7573, Jan. 15, 2007).

(2) The Public Official Election Act adopts the proportional representation system by reporting the list of proportional representative members presented by each political party, separate from voting by the electors for the proportional representative National Assembly members, and voting for each political party, to allocate the seats of the proportional representative National Assembly members according to the ratio obtained by each political party. Therefore, the electoral system of proportional representative members has the character as an election for a political party, and it is necessary to inform the electors of a specific constituency of personal figures, political opinions, faith, etc., unlike the election of the proportional representative National Assembly members.

At this time, the details and order of the list of candidates for proportional representative National Assembly members prepared by a political party will be a material to determine how the electors implement the platform and policy of the political party, as well as the status, occupation, career, personality, conduct, organization to which they belong, etc. of the candidates for proportional representative National Assembly members, and whether they conform to the platform and policy of the political party, etc., are significant in that they can determine the ratio of votes obtained by the political party and the number of proportional representative seats,

(3) According to the evidence duly examined and adopted by the court below, ① the defendant sold 40,00 shares of the non-indicted 1 corporation on October 5, 2007 and October 8, 2007 to warn the market price manipulation force, the share price of the non-indicted 1 corporation began to decline from the beginning with the beginning of the beginning of the beginning of the beginning of the beginning of the beginning of the beginning of the beginning of the beginning of the beginning of the beginning of the beginning of the beginning of the beginning of the beginning of the meeting of understanding on April 19, 2007. The cancellation of the first of April 19, 2007 led to the decline of the share price to the extent that the share price can not be recovered, ② the defendant's resistance against the decline of the share price and the decline of the share price. In particular, the defendant, without mentioning the fact that he had sold 130,000 shares on October 5, 207, the defendant sold the shares on his website to secure business funds.

(4) As above, in the situation where the Defendant sold the real name shares and the Defendant’s resistance against the Defendant’s explanation as to the reason for the sale thereof, and the Defendant was under investigation by the Financial Supervisory Service, if it is revealed that the Defendant possessed a borrowed-name property of at least KRW 9.5 billion as indicated in the attached Table IV of the lower judgment, and in particular, if it is found that the Defendant sold the borrowed-name shares under the name of executives and employees, and held a large amount of market profit by selling them, it can be sufficiently anticipated that the Defendant’s voting has a negative effect.

(5) Therefore, it is difficult to accept the assertion that the publication of false facts about the details of property, such as whether the Defendant, a proportional representative candidate, holds a borrowed-name account, is not related to “the purpose of being elected or making another person be elected.”

C) Determination as to whether the facts charged violate the principle of specification and non-competence

(1) The crime of publishing false facts under Article 250 (1) of the Public Official Election Act is established when a candidate, his spouse, lineal ascendant or descendant, or sibling's birth place, status, occupation, career, property, personality, act, conduct, organization to which he belongs, etc. is published or possessed for the purpose of distributing a propaganda document containing false facts in favor of a candidate or a person wishing to be a candidate by means of a speech, broadcast, newspaper, communication, magazine, poster, propaganda document, propaganda document, or any other means. The crime of publishing false facts under Article 250 (1) of the Public Official Election Act is established when a candidate, his spouse, lineal ascendant or descendant, or sibling, or for the purpose of publishing false facts or distributing a propaganda document containing false facts. The crime of publishing false facts is not likely to be confused with other crimes unless the defendant stated the date and method of publishing false facts to the extent that it can be distinguished from other facts charged,

(2) In addition, the lower court determined that the Defendant was the purpose of winning the election on the grounds of various premises, such as the Defendant’s assertion, with regard to the issue of whether the “determination on the assertion of the Defendant and the defense counsel” in the “determination on the assertion of the Defendant and the defense counsel”, and cannot be said to contravene the principle of no accusation

(3) Therefore, the judgment of the court below cannot be deemed to have erred by misapprehending the legal principles on the principle of no accusation by recognizing the facts charged beyond the scope of the facts charged, or by obviously exceeding the scope of the facts charged, and thus, the defendant's assertion

B. Judgment on the prosecutor's misconception of facts or misapprehension of legal principles

1) Determination on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement)

A) The judgment of the court below

The court below found the Defendant not guilty on the ground that, even though there is a lack of a thorough examination of the feasibility of promotion of projects and the appropriateness of the purchase price, etc. in relation to the payment of KRW 800 million in the purchase of the instant machinery, it could be seen that there was an intention to actually promote resource recycling projects included in the company’s intended business purposes, and further examined the feasibility of promotion of projects and the appropriateness of purchase price, etc., and there is a lack of evidence to deem that there is no value of the purchased machinery or that the purchase price is significantly reduced compared with the purchase price.

B) Determination of the immediate deliberation

In light of the records, the above judgment of the court below is just and acceptable, and there is no error of misunderstanding of facts or misunderstanding of legal principles as alleged by the prosecutor, and the prosecutor's assertion is without merit.

In addition, in light of the above circumstances, it is difficult to see that the crime of breach of trust has been established against the defendant, and the court below did not question whether the crime of breach of trust has been established, and there is no violation of law since the court below acquitted the defendant on this part, so the prosecutor's allegation on

2) Determination on the violation of the Securities and Exchange Act and the Public Official Election Act relating to the borrowed-name shares of Nonindicted 2 and 3

A) Violation of the Securities and Exchange Act and the Public Official Election Act relating to the shares of Nonindicted 3

The court below found the defendant not guilty on the ground that it is difficult to view that the profits and losses were owned by the defendant or that there was no other evidence to recognize the profits and losses as the defendant's own property, considering the fact that the defendant contributed to the initial purchase fund of Nonindicted 3, but the circumstances leading to the sale of the above shares, the use of the sale price, and the fact that Nonindicted 2, who was in charge of the above shares, stated that it is unclear whether the above shares were reported at the first borrowing of Nonindicted 3.

B) Determination on the violation of the Securities and Exchange Act and the Public Official Election Act relating to the shares of Nonindicted 2

The court below held that the 44,38 share price out of non-indicted 2's shares 123,268 shares and the 333,978 share price among the 310,710 share price of the defendant's shares and 210,710 share price of the 333,978 share shares, which were managed by non-indicted 2 without distinction from the same account, is insufficient to conclude that the 44,338 share price out of the shares in the above non-indicted 2's shares is the defendant's borrowed shares, and there is no other evidence to acknowledge this. The judgment of the court below is just in comparison with the records, and there is no error of misunderstanding

3) Judgment on the misapprehension of legal principles as to collection

(1) The property generated from the violation of the Securities and Exchange Act due to the fraudulent illegal transactions is subject to collection under Article 2 subparag. 1 [Attachment Table] subparag. 16, Article 8, and Article 10 of the Act on Regulation and Punishment of Criminal Proceeds Concealment. Whether it is subject to collection is not subject to strict certification, but where it is impossible to specify the criminal proceeds subject to collection, it shall not be subject to collection, and since the collection under Article 10 of the Act on Regulation and Punishment of Criminal Proceeds Concealment is voluntary, the issue of whether it is subject to collection is subject to the discretion of the court (see Supreme Court Decision 2007Do2451, Jun. 14, 2007).

(2) The court below held that the "profit from a violation" under the proviso of Article 207-2 (1) and (2) of the Securities and Exchange Act refers to the profit from a transaction related to the violation, and it does not necessarily mean that there is a direct causal relationship with the violation, and if the violation constitutes the profit from a transaction involving the violation, it does not constitute the profit from the violation. However, Article 207-2 of the Securities and Exchange Act does not include a statutory provision for criminal punishment, a provision for determining the scope of liability for damages, or a provision for deprivation of the profit from a direct causal relationship with the violation. In the case of a fraudulent illegal transaction under Article 270-2 of the Securities and Exchange Act, the crime profit subject to confiscation or collection under the Act on Regulation and Punishment of Criminal Proceeds Concealment is limited to the profit directly related to the violation. In this case, the court below's judgment is just in light of the nature of the fraudulent transaction done by the defendant and the situation of the share price change of the same company during that period, the non-indicted 15 members of the Korea Investment Research Institute, etc.

C. Determination on the assertion on unfair sentencing (Defendant and Prosecutor)

1) Determination on the sentencing of a violation of the Securities and Exchange Act

In order for the securities market to function properly, the efficiency of the securities market should be secured, the real value of the company should be reflected in the price of the securities, and the market participants should obtain information fairly, and as a result of the speculative act beyond reasonable motive, the transparency of the market should be ensured so that the share price does not deviate from the real value of the company.

In the event that securities trading becomes unfair and the securities market is artificially affected, this results in compelling many investors who trust the completeness and fairness of the market and disrupt the market's pricing mechanism to distort efficient resource allocation. In the case where fraudulent illegal trading in the securities market is character and the investor loses trust in the market, it may lead to a situation that may undermine the foundation of the national economy, and in the external aspect, the transparency of the Korean securities market is lower than that of other foreign securities markets, and it is likely that the capital outflow deepens, and that the external respect for the financing of domestic companies and the selection of investors is high.

In this case, the Defendant continuously and repeatedly distorted the uncertain facts with regard to the economic value of the business itself, the ability to implement high-value-added business, the timing for profit-making, and whether the business operator of the existing mine development project, which he/she operates through various media, became final and conclusive, or published false facts.

In addition, as the stock price rise, the Defendant sold the borrowed-name shares in the name of executives and employees without fulfilling the duty to report under the Securities and Exchange Act, and disposed of the shares in his name from the highest point to the shares in his name, thereby making 40 billion won profit.

As such, when Nonindicted Co. 1, which was merely KRW 90 billion of sales as of 2007 and KRW 1.3 billion of net profit per party, due to the Defendant’s illegal act, was committed, the credibility of the securities market was significantly damaged as the actual value of the company, such as being a company at the second level in the KOSDAQ market exceeding the total market value of KRW 1 trillion. Moreover, as the business promoted by the Defendant was discontinued, a large number of investors who trusted the Defendant’s speech and behavior due to the decline in the share price of Nonindicted Co. 1, 2007, were aware of serious economic damage and mental loss, and thus, the Defendant’s act is not deemed to be a crime.

Furthermore, the Defendant, as the representative director of a company, did not intend to hedge the mind of the investors who suffered damage due to his illegal act, but did not endeavor to recover their damage. The Defendant resigned from the office of representative and was elected by filing an application for proportional representation in the 18th National Assembly election for the 18th National Assembly member, and not only did his mistake be divided up to the court of appeal in the instant appellate case, but also was consistent with the vindication for his own act, and the circumstances after the crime are not good, and thus, the Defendant cannot be exempted from the heavy punishment.

However, in addition to the defendant's fraudulent illegal transactions, the investment power of the members of the Korea Investment Research Institute operated by the non-indicted 15 has influenced a certain portion of the investment power of the members of the Korea Investment Institute operated by the non-indicted 15, the project for the development of Uzbekistan mine, which the defendant promoted together with the defendant, continues to progress by the non-indicted 11, etc., and the defendant's market price is subject to the preservation for collection of the property and borrowed property. This is ultimately formed under the investor's property losses. It seems reasonable to have been ultimately deprived of the defendant's property and ultimately, it would be more appropriate to belong to the investors who have filed a lawsuit claiming damages against the defendant more than the defendant's property belonging to the State as a fine. The defendant submitted the statement that the remaining money has been appropriated for the compensation of the damaged shareholders who have been executed by collection or fine or executive title among the 30 billion won property in relation to the collection preservation of the defendant's property in this case, the defendant's age, character and behavior of the defendant, and the defendant's argument is without merit.

2) Determination on the sentencing of a violation of the Public Official Election Act

An act of a candidate for public office not reporting the details of his/her own property in good faith is not only an act to punish the legislative purpose of the Public Service Ethics Act enacted for the purpose of preventing the increase of public officials' illegal property and ensuring fairness in the performance of public duties and establishing the ethics of public officials as a servant for the public, but also an important index for determining electors' economic and living capabilities in a candidate for public office as well as an act to interfere with the proper judgment of the right holder and to impose liability corresponding thereto on the defendant. The amount of the defendant's borrowed property exceeds 9.5 billion won; the defendant sold the real name shares at the time of submission of a document to register a candidate for a National Assembly member such as the report of property in a candidate for public office; the fact that the defendant sold the real name shares at the time of sale of the defendant at the time of submission of a document to register a candidate for a National Assembly member such as the report of property in a candidate for public office; and the defendant was under the investigation of the Financial Supervisory Service; and the defendant's various sentencing conditions prescribed in Article 51 of the Criminal Act as a crime in this case.

3. Conclusion

Therefore, since the appeal against the defendant's violation of the Securities and Exchange Act is well-grounded, the decision of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act and it is again decided as follows. The appeal by the defendant and prosecutor about the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) in the judgment of the court

The gist of the facts constituting an offense and the evidence recognized by this court is to delete the relevant part of the crime constituting the “violation of the Public Official Election Act” from among the criminal facts column, and the summary of the evidence is as stated in the relevant column except for adding the “each of the original trial statements made by Non-Indicted 11 and 15 of Non-Indicted 15 of the witness of the first instance trial” to the summary of the evidence.

1. Article applicable to criminal facts;

Articles 207-2 (2) 1 and 188-2 (1) 2, 188-4 (4) 1 and 2, 214 (1) and (2) of the Securities and Exchange Act (including the fraudulent unfair trading through the dissemination of false facts and the use of false statements), each of the former Securities and Exchange Act (amended by Act No. 8904 of March 14, 2008), Article 210 subparagraph 5, Article 188 (6) of the former Securities and Exchange Act (amended by Act No. 8904 of March 14, 2008), each of the former Securities and Exchange Act (amended by Act No. 8863 of February 29, 2008), Article 210 subparagraph 5-2, Article 200-2 (1) of the Securities and Exchange Act (amended by Act No. 8863 of Feb. 29, 2008), Article 207-2 (1) 1 and Article 18-2 (1) of the Securities and Exchange Act

1. Selection of punishment;

O The punishment for the violation of the Securities and Exchange Act due to fraudulent unfair trading shall be chosen and fined shall be imposed concurrently.

(O) select each imprisonment with labor for the violation of the Securities and Exchange Act due to the use of undisclosed information, the violation of the duty to report the status of stock ownership, and the violation of the obligation

1. Aggravation of concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 (Concurrent Punishment of Crimes against Securities and Exchange Act, and Punishment between Crimes of Violation of Each Securities and Exchange Act, and Punishment on False Unfair Trading, as prescribed by the Securities and Exchange Act)

1. Discretionary mitigation;

Articles 53, 55(1)3, and 55(1)6 of the Criminal Act ( considered as favorable circumstances for the ground for reversal)

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Inclusion of days of detention in detention;

Article 57 of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

The summary of the facts charged on the violation of the Securities and Exchange Act due to the fraudulent unfair trading in this case, the violation of the duty to report in possession, the violation of the duty to report in possession, and the violation of the duty to report in possession, exceeds the scope of conviction recognized by the court below. The defendant held the borrowed stocks in the name of non-indicted 3 and sold them as shown in the list of crimes attached to the court below, and the defendant sold 4,338 old stocks held in the name of non-indicted 2 as shown in the same list. As a result, the defendant violated the duty to report in possession and the status of stocks held (the date and time of the crime and the number of breach of duty to report are the same as the above conviction, but the specific contents of the duty to report are different), and the amount of profit from the fraudulent unfair trading is found to be 43,760,557 won (this court recognized that the non-indicted 3 was not guilty as the defendant's property in the name of the non-indicted 3 or as the non-indicted 3's property.

Judges Park Jong-nam (Presiding Judge)