[1] The elements for the establishment of a co-principal, and the method of proof in a case where the defendant denies the facts of conspiracy and the criminal intent

[2] The case holding that in relation to the crime of stock price manipulation by another person, the person who has actively inducedd and managed the investors, etc. not only issued the securities account and funds under his name but also committed a crime of conspiracy of violation of Article 188-4 of the Securities and Exchange Act

[3] In a case where both punishment of imprisonment and fine are imposed on a single crime, whether punishment of imprisonment can be mitigated (negative)

[1] Articles 13 and 30 of the Criminal Code, Article 307 of the Criminal Procedure Act / [2] Articles 188-4, 207-2, and 214 of the Securities and Exchange Act, Article 30 of the Criminal Code / [3] Articles 53 and 55 (1) 6 of the Criminal Code

[1] Supreme Court Decision 2005Do8645 Decided February 23, 2006 (Gong2006Sang, 537) Supreme Court Decision 2007Do11258 Decided April 24, 2008 / [3] Supreme Court Decision 2008Do3258 Decided July 10, 2008

Defendant 1 and four others

Defendants

Law Firm Barun, Attorneys Han-soo et al.

Seoul High Court Decision 2008No579 decided July 11, 2008

The judgment below is reversed, and the case is remanded to Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to Defendant 2 and 5’s assertion of misapprehension of the legal doctrine

In the case of joint principal offenders who jointly process two or more persons and commit a crime, the conspiracy or conspiracy does not necessarily need to be made explicitly, in order, or impliedly, and in any case, a combination of intent to jointly realize the crime is required. However, in a case where the defendant denies the criminal intent together with the conspiracy of the defendant, the subjective element of the crime is to be proved by means of proving indirect facts or circumstantial facts that have considerable relevance with the criminal intent due to the nature of the object (see Supreme Court Decision 2005Do8645, Feb. 23, 2006, etc.). Meanwhile, Article 30 of the Criminal Act is established by satisfying the subjective and objective requirements of criminal execution, which is a crime through functional control based on the intention of joint processing and the intention of joint principal. Even if some of the elements of the conspiracy have not been carried out by direct sharing of part of the elements, it is recognized that the crime constitutes a whole crime, such as the status of the principal, the role of the crime, or the process of controlling the crime, and if it is not recognized by means of 207.

Examining the evidence adopted by the court of first instance as cited by the court below in light of the record and the above legal principles, the above Defendants delivered securities accounts and funds to the Nonindicted Party, etc. so that they can be used in the price manipulation by means of price manipulation, and actively attract and manage investors so that securities accounts and funds in their names were used in the crime of price manipulation by the Nonindicted Party, etc.

In the same purport, the court below is just in finding the Defendants guilty of committing the stock price manipulation in collusion with the Nonindicted Party, etc., and there is no error in the misapprehension of legal principles as to the conspiracy, criminal intent, establishment of a joint principal offender, or violation of the rules of evidence as alleged in the grounds of appeal.

2. As to Defendant 1, 3, and 4’s assertion of misapprehension of the legal principles

Since all the above defendants appealed from the judgment of the court of first instance only on the ground of unfair sentencing, the above defendants' assertion of misapprehension of the legal principle or violation of the rules of evidence cannot be a legitimate ground for appeal. In addition, even if considering the reasoning of the judgment below in light of the records, the court below is justified in finding the above defendants guilty of all the facts charged against the above defendants by the evidence adopted by the court of first instance. There is no error in the misapprehension of legal principles as to public offering, criminal intent, joint principal offender's establishment, or

3. Ex officio determination

In a case where both punishment and a fine are concurrently imposed on one crime, the punishment of imprisonment with prison labor shall be mitigated only and the punishment of a fine shall not be mitigated (see Supreme Court Decisions 96Do3466, Aug. 26, 1997; 2008Do3258, Jul. 10, 2008, etc.).

According to the statement in the column of applicable provisions of the judgment below, the court below decided to punish the Defendants, a single comprehensive crime, concurrently with imprisonment with prison labor and fines, and did not state only Article 55(1)3 of the Criminal Act, which is a discretionary mitigation provision for imprisonment with prison labor, but also Article 55(1)6 of the Criminal Act, which is a discretionary mitigation provision for punishment with prison labor, in light of the reasoning of the judgment, and there is no ground to recognize that the amount of the fine was mitigated even after considering the reasoning of the judgment. Thus, the court below is bound to have reduced the amount of the fine only for imprisonment and not mitigated the amount of the fine.

Therefore, the judgment of the court below is erroneous in the misapprehension of legal principles as to discretionary mitigation, which affected the conclusion of the judgment.

4. Conclusion

Therefore, without examining the remaining grounds of appeal by the Defendants, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Ji-hyung (Presiding Justice)