(영문) 서울지방법원 2003. 6. 25. 선고 2002노9772 판결

Defendant 1 shall be punished by imprisonment for eight months, by imprisonment for one year and six months, by fine for one million won, and by imprisonment for one year and six months, by imprisonment for Defendant 2, and by imprisonment for three months and fine for three hundred thousand won.

When Defendant 2 and Defendant 3 fail to pay each of the above fines, each of the above Defendants shall be confined in a workhouse for the period calculated by converting the amount of KRW 1,000,000 into one day.

The number of days of detention before the pronouncement of the judgment below shall be 48 days in the above sentence against Defendant 1, and the 96 days in the above imprisonment against Defendant 2.

However, for a period of two years from the date this judgment became final and conclusive, the execution of the above imprisonment shall be suspended for Defendant 1, Defendant 2, and Defendant 3.

Defendant 4’s appeal is dismissed.

Reasons

1. Summary of the Defendants’ grounds for appeal

A. Defendant 1

(1) misunderstanding of facts (the point of giving rise to breach of trust)

Defendant 1 did not have consulted in advance with Nonindicted Co. 2 (hereinafter “Nonindicted Co. 2”) on the acceptance of convertible bonds issued by Nonindicted Co. 1 (hereinafter “Nonindicted Co. 1”) by Nonindicted Co. 2 (hereinafter “Nonindicted Co. 2”) about KRW 175 million per unit. Defendant 2 also asked Defendant 1 to introduce the purchaser of convertible bonds to the extent that the cost of KRW 175 million is necessary in addition to the redemption of the principal and interest of convertible bonds. As such, Defendant 1 was aware of KRW 175 million per unit of convertible bonds as a penalty for early repayment to Nonindicted Co. 2, and Defendant 1 did not have a duty of KRW 1.7 billion per unit of convertible bonds at the time of Nonindicted Co. 1’s offering of 200 million to Nonindicted Co. 1’s Co. 2, 2006; Defendant 1 did not have a duty of KRW 1.75 billion per unit of convertible bonds; Defendant 2’s offering of money to Nonindicted Co. 1, 2001.

(2) Unreasonable sentencing

In light of the fact that Defendant 1 was difficult for the development of the Korean Venture Industry and no profit has been acquired from the stock swap transaction in this case, etc., the punishment sentenced by the court below against Defendant 1 is too unreasonable.

B. Defendant 2

(1) misunderstanding of facts and misapprehension of legal principles

(A) As to the facts constituting the crime of the court below (in violation of the Securities and Exchange Act)

Defendant 2 did not inform Defendant 3 of the material nonpublic information on the promotion of A&D between Nonindicted Co. 1 and Nonindicted Co. 4 (hereinafter “Nonindicted Co. 4”). Defendant 2 did not state that Defendant 1, Defendant 3, and Defendant 3 did not conclude on April 7, 2001 that there would be any benefit in confirming and accepting a merger plan by means of a share swap between Nonindicted Co. 1 and Nonindicted Co. 4 and that there would be a benefit in the process of confirming and accepting the merger plan between Nonindicted Co. 1 and Nonindicted Co. 4. It was only divided into ordinary dialogues such as a virtue of the other company.

Even if Defendant 2 divided the dialogues between Defendant 1 and Nonindicted 1 and Nonindicted 4 Company A&D, it cannot be deemed that Defendant 2 had Defendant 3 use the internal information on the following three grounds. First, the dialogues between Defendant 2 and Defendant 2 are merely information that has already been aware of the A&D promotion information, but it is merely a reasonable investor who does not know the relevant information, so that the content of the conversations between Defendant 2 and Defendant 2 could not have a significant impact on the judgment on investment, i.e., information that could have a significant impact on the judgment on investment, and second, even if a third party becomes aware of the internal information with another internal person, the third party does not have an internal information provision as a result, and Defendant 3 did not have to use the internal information, so it cannot be deemed that Defendant 2 had a third party use the internal information in the status of Defendant 2 and Defendant 1.

(B) As to the facts constituting the crime of the court below (in violation of the Securities and Exchange Act)

When Defendant 2 has already notified Nonindicted Co. 5 (hereinafter “Nonindicted Co. 5”) the asset management company of Nonindicted Co. 2 prior to the instant convertible bonds transaction, Defendant 2’s internal trading cannot be concluded since there was no unfair information gap between Defendant 2 and Nonindicted Co. 2, the transaction partner. In other words, the act at issue here is convertible bonds transaction between Nonindicted Co. 2 and Defendant 2, and the so-called “large-term transaction” where transaction takes place without going through the open securities market, the issue of fairness in the securities market or the reliability of ordinary investors is not determined. Therefore, whether the information gap is “unpublic information” should be determined depending on whether the transaction partner knew of the information. If the other transaction partner knew of the pertinent information, the pertinent information cannot be seen as falling under “unpublic information” which is the requirement for the internal trading of Nonindicted Co. 2, the party to the transaction, even if not disclosed, and the fact that Nonindicted Co. 3 was aware of all of the internal trading of Defendant Co. 4 and the party to the transaction, who was in charge of acquiring the information.

In addition, the information on the promotion of A&D between Nonindicted Co. 1 and Nonindicted Co. 4 was not “the factor to determine whether to deal with the instant convertible bonds to Defendant 2 or Nonindicted Co. 2, and thus, its internal trading cannot be concluded. In other words, from the perspective of Defendant 2, the instant convertible bonds were made at the request of early redemption of Nonindicted Co. 2 and were repaid for the purpose of promoting A&D between Nonindicted Co. 1 and Nonindicted Co. 4. From the perspective of Nonindicted Co. 2, it is clear that the information on A&D promotion was not “the factor” of the instant convertible bonds since it had already been set forth in the policy for early redemption of convertible bonds, but was reserved only at that time in consideration of the financial situation of Nonindicted Co. 1. However, even if both Nonindicted Co. 5 and the head office or decision-making authority of Nonindicted Co. 2 were aware of the information on D&D, it cannot be determined that the instant convertible bonds were still sold to Defendant 2, etc.

Defendant 2 merely asked Nonindicted 3 to take advantage of convenience within the scope of his official authority and thus cannot be deemed as “illegal solicitation.” The content of Defendant 2’s solicitation to Nonindicted 3 is the request to proceed with the existing early repayment procedure. It is clear that Defendant 2’s expression of intent to proceed with the repayment procedure is not an illegal solicitation, since the early repayment procedure of Nonindicted Company 2 was suspended upon Defendant 2’s request. Defendant 2 did not have provided Nonindicted 3 with an early repayment and requested an early repayment (the original instance was the issue of the sale of shares held by Defendant 2 around March 201). However, Defendant 2 was requested to sell part of the shares held by Nonindicted 3, and Defendant 2 did not have requested or consulted in advance.

In addition, Defendant 2 was unable to comply with the demands of Nonindicted 3, who demanded money to promote A&D, and thus, Defendant 2 cannot be recognized as “the possibility”. Defendant 2 is practically impossible to expect Defendant 2 to refuse the demand of a person in charge of payment to comply with the company taken care of by his father in the event of the violation of the law or the failure to request any content contrary to the relevant contract, such as this case.

(2) Unreasonable sentencing

In light of the fact that Defendant 2 did not inflict any damage on the general investors, there is no way to undermine the fairness of the open securities market, Nonindicted Co. 2, who was the party to the transaction, did not appeal for damages or have not been punished by Defendant 2, Nonindicted Co. 2, also did not suffer losses, as the company sold convertible bonds by receiving the principal and interest of the convertible bonds in accordance with the early redemption decision in accordance with the internal policy, and sold the convertible bonds. The inevitability of the transaction of the instant convertible bonds, Defendant 2, Defendant 2, selling the convertible bonds acquired in the name of Nonindicted Co. 7, and partly realized profits by selling them to Nonindicted Co. 7, but it was difficult for the company to reject such profit, etc., the punishment imposed by the court below against Defendant 1 is too unreasonable.

C. Defendant 3

(1) misunderstanding of facts and inconsistent reasoning (the violation of the Securities and Exchange Act)

Defendant 3, rather than using the information known to Defendant 2 from Defendant 1 and Defendant 2, led to the confession that Defendant 3 used the information known to Defendant 1 and Defendant 2. However, insofar as there is no direct communication with Defendant 2 in the requirements for the establishment of accomplice, Defendant 3 did not necessarily demand that Defendant 3 act on one hand, even if the fundamental source of information from Defendant 1 was Defendant 2, the relationship with Defendant 2 was not denied. Therefore, Defendant 3’s communication with Defendant 2 is solely established through Defendant 1. Thus, Defendant 3 who traded the information obtained from Defendant 1 through Defendant 1 is also innocent as a logical and inevitable consequence. If Defendant 1 was omitted in the public relations with the lower court, Defendant 3 should naturally be found guilty, as long as there was no direct communication with Defendant 2, and thus, Defendant 3 should not be found guilty, but the lower court recognized Defendant 1’s essential role in the distribution of information and constituted a violation of the Securities and Exchange Act, thereby finding Defendant 2 and Defendant 3 was not guilty.

(2) Unreasonable sentencing

In light of the fact that Defendant 3 did not conspired with the internal organ or the operating force of the company, the circumstances of the violation are relatively minor, the fact that Defendant 3 shared and cooperated with the investigation, and the size of acquired profits is relatively minor compared to the violation, etc., the punishment imposed by the court below against Defendant 1 is too unreasonable.

D. Defendant 4

Defendant 4, as a person specialized in stock investment, has been subject to emulative investments such as Nonindicted Stock Company 1, has repeated revocation of orders and orders every day. Unlike the method of orders issued by a general shareholder’s order list, Defendant 4’s order based on the trading method or a large number of times is likely to have a large amount of money, unlike the method of orders issued by the general shareholder’s order list, should not be inferred to Defendant 4’s criminal intent.

In other words, the shares of Nonindicted Co. 1, which Defendant 4 traded from April 26, 2001 to May 2 of the same year, were recorded in the upper limit in succession from April 26, 2001 to May 11 of the same year due to the A&D announcement, and the price cannot be adjusted according to whose intention the upper limit was not shakened during that period. The lower court determined that Defendant 4’s intention and purpose was presumed to be presumed to have been increased, but there was no reason to induce Defendant 4 to make a transaction.

Defendant 4’s motive for the instant purchase of shares was under development of a specialized HTS system as a director of Nonindicted Co. 8 at the time, and thus, the order for purchase and cancellation of the instant shares was issued for the purpose of collecting such data. Defendant 4’s act was purchased in the purchase order, namely, the immediate cancellation of the purchase order or concurrent house hours other than during the time zone, and the lower court artificially interpreted Defendant 4’s act. Therefore, the lower court found Defendant 4 guilty, by misapprehending the legal doctrine or by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.

2. Summary of the grounds for appeal by the public prosecutor (as to the part on the violation of the Securities and Exchange Act against the defendant 1);

On February 6, 2001, Defendant 1 drafted a confidentiality agreement with Defendant 2, a major shareholder of Nonindicted Co. 1 corporation, on the procedures for negotiating mergers, and Defendant 1 is an entity prohibited from using undisclosed information for the following reasons, the lower court acquitted Defendant 1 on the ground that Defendant 1 cannot be deemed as having performed the act in the position of a person concluding the contract with the pertinent corporation on the fact that Defendant 1 was allowed to use undisclosed information. In so doing, the lower court erred by misapprehending the facts or by misapprehending the legal doctrine, which affected the conclusion of the judgment.

First, Defendant 1 is a quasi-internal. In other words, the concept of "a person who has entered into a contract" is a broad concept of the content, type, form, etc. of a contract, and it does not mean only a finalized contract, and whether it is a quasi-internal is a matter to be determined by law or a contract whether it is a legally accessible position to internal information. In this case, the "contract" which is a requirement to be regarded as a quasi-internal is not limited to a merger contract which is a basis for important information, but also a case in which it is accessible to the important information of "merger". In this case, Defendant 1 was contacted with Defendant 2 who is a major shareholder of the non-indicted 1 corporation and conducted negotiations around February 6, 201 (before the acquisition of convertible bonds with Defendant 3) after preparing a confidentiality agreement related to the process of bilateral merger, so at this stage, it shall be deemed that the "merger" was an important information created, and the defendant is a person who has a legitimate position to access such important information.

Second, Defendant 1 is the recipient of the information. The court below seems to have not recognized the scope of the recipient of the information under the premise that it cannot include one of the parties to the merger contract of this case. However, there is no explicit provision that excludes the parties to the contract under the legal provision, and there is no reason to interpret it. As to this case, Defendant 1 is in the process of concluding the merger contract with Defendant 2, and at the same time, Defendant 2 received the important information of the company called “merger contract” from Defendant 2. If the recipient of the information is limited to the third party who received the information from the internal or quasi-internal, and the other party to the contract of this case is excluded, the “third party” that received the information from the internal or quasi-internal is punished, and the accessibility of the information would result in a unreasonable conclusion that is not punished.

Third, Defendant 1 constitutes an accomplice to the crime of Defendant 2. The crime of this case is a kind of genuine status that constitutes “a person who becomes aware of undisclosed information regarding his duties” or “the person who received such information from him,” or if there is a combination of intent to jointly process and realize the crime of a person with such status without such status by virtue of Article 33 of the Criminal Act, even if there is no such status relationship, Defendant 1 and Defendant 2 may be punished for a violation of Article 188-2(1) of the Act. In other words, Defendant 1 and Defendant 2 need to acquire the convertible bonds of Nonindicted Company 1 in the course of the merger with Defendant 3, and in that process, there was contact with Defendant 3. Even if Defendant 1 and Defendant 2 knew of the merger of the company from March 201 to March 3, 200, it was done through consultation with Defendant 2, and thus, it cannot be deemed Defendant 1’s accomplice as a sole criminal intent.

3. Determination on the grounds for appeal

(a) A prosecutor;

(1) Facts charged against Defendant 1 in violation of the Securities and Exchange Act

Of the facts charged against Defendant 1, the summary of the charges on the violation of the Securities and Exchange Act is that Defendant 1, a working-level officer of Nonindicted Co. 4, contacted with Defendant 2, who is a major shareholder of Nonindicted Co. 1, and formed a confidentiality agreement regarding the process of negotiations on the two occasions around February 6, 2001, Defendant 1, in collusion with Defendant 2, who was conducting negotiations with Nonindicted Co. 1, who was in the name of Nonindicted Co. 3, to sell and exchange shares with Nonindicted Co. 4 to the public during the period from March 201 to April 2001. Nonindicted Co. 10, Nonindicted Co. 10, who was in the name of Nonindicted Co. 4, who was in charge of Nonindicted Co. 1, who was in charge of Nonindicted Co. 6’s violation of the Securities and Exchange Act, was to acquire new shares of Nonindicted Co. 3, who was in the name of Nonindicted Co. 1, 196, who was in the name of Defendant 2, and to receive new shares from Defendant 2000 million.

(2) The judgment of the court below

A person subject to the prohibition of using undisclosed information under Article 188-2 (1) of the Securities and Exchange Act (amended by Act No. 6695 of Apr. 27, 2002; hereinafter the same) is limited to officers, employees, agents, outside auditors under audit contracts with major shareholders, etc., and quasi-internals of securities companies, bank banks, attorneys-at-law or accountants, consulting companies, etc. who have entered into contracts for underwriting for the purpose of public offering or public sale of securities, and information recipients who have received material undisclosed information from inside. Thus, Defendant 1 does not constitute internal or quasi-internals as officers of non-indicted 4 corporation who have entered into contracts for A&D with the non-indicted 1 corporation, and even if the above defendant was elected to the position that the non-indicted 1 entered into contracts with the corporation concerned under Article 188-2 (1) 4 through 5 of the Securities and Exchange Act or their agents or employees, the act of the defendant 1 entered into contracts with the corporation concerned before April 25, 2001.

However, there is room to view that Defendant 1 and Defendant 2 conspired with Defendant 1 and Defendant 2 on April 7, 2001 about the share swap transaction in a single place with Defendant 3, and Defendant 1 and Defendant 2 should be liable for a crime pursuant to Article 33 of the Criminal Act, since there is room to view that Defendant 1 and Defendant 2 conspired with Defendant 3 to use undisclosed information. However, in light of the fact that Defendant 1 had already known such information to Defendant 3 from March 2001 to April 7, 2001, Defendant 1 was not guilty on the ground that it is not natural to view that Defendant 2 and Defendant 2 had the intent of conspiracy with Defendant 2 to regard the said remarks as above with the intent of conspiracy.

(3) Determination of party members

원심이 적법하게 조사·채택한 여러 증거들 및 비밀유지의무합의서의 기재를 종합·검토하여 보면, 피고인 1은 2001. 1. 하순경 피고인 2와 만나 A＆D를 하는데 협조하기로 한 다음(수사기록 제581면), 2001. 2. 6.경 비밀유지의무합의서를 작성하면서 “ 공소외 1 주식회사와 공소외 4 주식회사 사이에 주식의 매수, 회사간 합병, 유상증자의 참여, 영업의 양수도, 자금투자 또는 자금대여 및 기타 이와 유사한 거래(이하 ‘본 거래’라 한다)에 관한 정보제공 및 비밀유지, 본 거래의 진행상 필요한 업무원칙과 관련한 상호합의”를 목적으로 하여 계약을 체결하고, 위 합의서 말미에는 “정당한 권한을 가진 대표자에 의해 서명날인한다”면서 공소외 1 주식회사를 대표하여 상무이사 피고인 2가, 공소외 4 주식회사를 대표하여 전무이사 피고인 1이 서명한 사실(공판기록 제179면), 위 합의서를 작성한 무렵 공소외 4 주식회사가 삼정회계법인을 통하여 공소외 1 주식회사의 회계장부를 실사하여 장부상 부실이 없음을 확인한 후 향후 일정과 구체적인 스왑거래에 대하여 의견을 교환하고, 2001. 3.경 공소외 1 주식회사와 공소외 4 주식회사는 주식매매계약서 및 투자계약서 초안을 작성한 후 법률적 검토를 하였으며, 2001. 4. 중순경 원칙적인 기본구조에 대하여 합의를 한 사실(수사기록 제581～582면), 한편, 피고인 1은 2001. 3. 20.경 피고인 3에게 전화하여 좋은 거래가 있다고 말하고, 며칠 후인 2001. 3. 25.경 피고인 3과 만나 공소외 1 주식회사와 공소외 4 주식회사가 주식스왑거래를 통하여 합병과 같은 효과를 얻는 거래를 한다면서 1구좌를 인수하라고 말한 사실, 피고인 1은 2001. 4. 7. 피고인 2, 피고인 3과 만났는바, 피고인 1은 피고인 2와 함께 피고인 3에게 공소외 1 주식회사의 전환사채를 인수하도록 설득하는 과정에서, 피고인 2와 공소외 1 주식회사와 공소외 4 주식회사 사이에 스왑거래를 하여 합병을 한다는 내용으로 대화한 사실(수사기록 제487～488면, 492면, 650～651면, 801면, 811면), 피고인 3은 2001. 4. 17. 공소외 1 주식회사로부터 공소외 2 주식회사가 보유하고 있던 전환사채(권면액 합계 40억 원) 중 일부(권면액 합계 10억 원)를 대금 12억6,000만 원에 인수하기로 하되, 인수금액을 모두 공소외 1 주식회사에서 보장하기로 하는 계약을 체결한 사실(수사기록 제171면, 480면), 공소외 1 주식회사는 2001. 4. 25. 공소외 10 외 36인에게 신주를 발행하여 이를 인수하게 하는 계약을 체결하고(수사기록 제119면), 공소외 4 주식회사와 위 공소외 10 외 36인은 공소외 1 주식회사에게 공소외 4 주식회사의 주식을 매도하기로 계약한 사실(수사기록 제129면), 공소외 1 주식회사가 주식교환을 통하여 정보통신사업에 진출한다는 사실은 2001. 4. 25. 공시된 사실(수사기록 제112면, 584면, 785면), 공소외 1 주식회사의 주가는 A＆D라는 호재성 재료에 힘입어 2001. 4. 10. 1주당 금 1,000원에서 합병공시 당일 1,990원, 2001. 5.말경 11,750원으로 급상승한 사실, 한편, 피고인 2는 2001. 4. 18. 피고인 3으로부터 전환사채 1구좌에 대한 대금을 송금받은 후 2001. 4. 24. 공소외 2 주식회사의 지정 계좌에 대금을 입금해 주고, 같은 날 위 전환사채를 대우증권 동래지점에 개설한 피고인 3의 계좌로 입고시킨 후, 위 전환사채를 바로 주식으로 전환청구하여 위 회사에서 회수한 것처럼 가장하기 위하여 2001. 6. 7. 피고인 1의 사무실에서 피고인 3과 주식양수도계약서와 전환사채상환계약서를 작성한 후 다음날 8. 일은증권 강남지점에 개설한 피고인 3 명의의 증권계좌로 우선 피고인 2와 공소외 11 등 기존의 공소외 1 주식회사 대주주 소유의 주식 중 32만주를 입고해 주어 동인으로 하여금 2001. 6. 11.경까지 사이에 전량을 2,165,834,240원에 매각하여 약 10억 원 상당의 시세차익을 취득하게 한 사실을 인정할 수 있다.

On the other hand, Article 188-2 (1) 4 of the Securities and Exchange Act provides that "a person who has entered into a contract with the corporation concerned" and Article 188-2 (1) 5 of the same Act provides that "if a person falling under subparagraph 4 is a corporation, its executives, employees, and agents." Since the above provision's legislative intent is particularly accessible to internal information due to the status arising from a certain relationship with the company regardless of the contents and type of the contract, type of contract, execution time, contract duration, contract duration, etc., the above provision's legislative intent is to prevent unfair benefits in the sacrifice of ordinary investors who are not aware of such information if they engage in securities transaction by using or abusing the interest points on the information, and thus, it is reasonable to view that the above provision's provision is an important part of the agreement between the non-indicted 4 corporation and the non-indicted 4 corporation on behalf of the non-indicted 6 corporation. Thus, even if it is reasonable to conclude the above agreement between the defendant 1 and the non-indicted 4 corporation, it constitutes an important agreement.

Therefore, it is sufficiently recognized that Defendant 1 conspired with Defendant 2 and entered into a contract for A&D with Nonindicted Co. 1, a KOSDAQ-registered corporation, in contact with Defendant 3, and notified Defendant 3 of the undisclosed information he learned in the course of performing his duties concerning the business of Nonindicted Co. 4, a corporation registered in the KOSDAQ-registered corporation, and had Defendant 3 use the undisclosed information in connection with the securities transaction of Nonindicted Co. 1. Nevertheless, the lower court acquitted Defendant 1 on the violation of the Securities and Exchange Act. Thus, the lower court erred by misapprehending the legal doctrine or by misapprehending the legal doctrine, thereby

B. Defendants

(1) Defendant 1 [Defendant 1]

According to the evidence duly examined and adopted by the court below, Defendant 2 stated that “The above KRW 175 million per unit of convertible bonds shall enter Nonindicted Co. 2,” and agreed to deliver KRW 175 million per unit of convertible bonds to Nonindicted Co. 3, who is the person in charge of Nonindicted Co. 2, as the price for underwriting of convertible bonds (Articles 598 through 59, 726 through 727, 749 and 866 of investigation records), and Defendant 2 did not have any error of law by giving Defendant 1, 70 million won to Defendant 2, who was not in charge of Nonindicted Co. 3, 2001, and was not in charge of Nonindicted Co. 1, 207, and Defendant 1 and Defendant 2 did not have any error of law by giving Defendant 2, 700,000 won of convertible bonds to Defendant 1 and Defendant 2, who was not in charge of Nonindicted Co. 3, 201.

(2) Defendant 2 (Fact-finding and misunderstanding of legal principles)

(A) As to the facts constituting the crime of the court below (in violation of the Securities and Exchange Act)

원심이 적법하게 조사·채택한 여러 증거들 및 당심 증인 공소외 3의 법정진술을 종합·검토하여 보면, 피고인 1은 2001. 3. 20.경 피고인 3에게 전화로 좋은 거래가 있다는 말을 하고, 며칠 후인 2001. 3. 25.경 피고인 3을 만나 공소외 1 주식회사와 공소외 4 주식회사가 주식스왑거래를 통하여 합병과 같은 효과를 얻는 거래를 한다고 하면서 1구좌를 인수하라고 권유한 사실(수사기록 제485～486면), 피고인 2는 2001. 4. 7. 피고인 1, 피고인 3과 만났는바, 피고인 2는 피고인 1과 함께 피고인 3에게 공소외 1 주식회사의 전환사채를 인수하도록 설득하는 과정에서, 피고인 3에게 “전환사채 거래로 어느 정도 수익을 기대하느냐”고 물었고, 이에 피고인 3이 “제가 어느 정도 수익을 예상하면 되겠느냐”고 되물었더니 피고인 2가 “20～30% 정도는 되지 않겠느냐”고 답하여 피고인 3이 “그 정도면 만족할만한 수준이다”라고 대답을 하였고, 그 자리에서 피고인 2는 피고인 1과 공소외 1 주식회사와 공소외 4 주식회사 사이에 스왑거래를 하여 합병을 한다는 내용으로 대화하고, 피고인 3에게 공소외 1 주식회사의 주가가 오를 것이다라고 말한 사실(수사기록 제487～488면, 492면, 650～651면, 801면, 811면), 피고인 3은 동생 공소외 12를 통하여 2001. 4. 17. 공소외 1 주식회사로부터 공소외 2 주식회사가 보유하고 있던 전환사채(권면액 합계 40억 원) 중 일부(권면액 합계 10억 원)를 대금 12억6,000만 원에 인수하기로 하되, 인수금액을 모두 공소외 1 주식회사에서 보장하기로 하는 계약을 체결한 사실(수사기록 제171면, 480면, 506면), 공소외 1 주식회사는 2001. 4. 25. 공소외 1 주식회사의 보통주 13,935,540주를 주당(액면가 500원) 1,700원 합계 23,690,418,000원에 발행하여 공소외 4 주식회사의 대표이사인 공소외 10 외 36인에게 배정하는 내용의 계약(수사기록 제119면) 및 공소외 4 주식회사의 주주 공소외 10 외 36인은 보유하고 있는 공소외 4 주식회사의 주식 402,554주를 주당 58,850원(액면가 500원)에 합계 23,690,418,000원에 공소외 1 주식회사에 출자한다는 내용의 계약을 각 체결하고, 경영에 대한 합의서를 체결한 사실(수사기록 제129면, 제576～577면, 583면, 628면), 공소외 1 주식회사가 주식교환을 통하여 정보통신사업에 진출한다는 사실은 2001. 4. 25. 공시된 사실(수사기록 제112면, 584면, 785면), 공소외 1 주식회사의 주가는 A＆D라는 호재성 재료에 힘입어 2001. 4. 10. 1주당 금 1,000원에서 합병공시 당일 1,990원, 2001. 5.말경 11,750원으로 급상승한 사실, 한편, 피고인 2는 2001. 4. 18. 피고인 3으로부터 전환사채 1구좌에 대한 대금을 송금받은 후 2001. 4. 24. 공소외 2 주식회사의 지정 계좌에 대금을 입금해 주고, 같은 날 위 전환사채를 대우증권 동래지점에 개설한 피고인 3의 계좌로 입고시킨 후, 위 전환사채를 바로 주식으로 전환청구하여 위 회사에서 회수한 것처럼 가장하기 위하여 2001. 6. 7. 피고인 1의 사무실에서 피고인 3과 주식양수도계약서와 전환사채상환계약서를 작성한 후 다음날 8. 일은증권 강남지점에 개설한 피고인 3 명의의 증권계좌로 우선 피고인 2와 공소외 11 등 기존의 공소외 1 주식회사 대주주 소유의 주식 중 32만주를 입고해 주어 동인으로 하여금 2001. 6. 11.경까지 사이에 전량을 2,165,834,240원에 매각하여 약 10억 원 상당의 시세차익을 취득하게 한 사실을 인정할 수 있다.

According to these facts, the information related to the merger between the non-indicted 1 corporation and the non-indicted 4 corporation is an important information for non-disclosure, and it is reasonable to deem that the defendant 2 had the intention to allow the defendant 3 to use the information. Thus, it can be sufficiently recognized that the facts charged against the violation of this part of the Securities and Exchange Act by the defendant 2 are without merit.

(B) As to the facts constituting the crime of the court below (in violation of the Securities and Exchange Act)

If the lower court duly examined and examined various evidence and part of Nonindicted 1 witness’s statement in the name of Nonindicted 5 and Nonindicted 2’s statement, Nonindicted 1 Co. 2, 4, which was 00 million won for the purpose of trading stocks with Nonindicted 4 Co. 1, 200, and 100 won for each of the Nonindicted Co. 2, 4, which was 00,000 won of the face value of KRW 1,000,000, KRW 4,000,000, KRW 7,000,000, KRW 1,000,000, KRW 5,000,000, KRW 1,000,000, KRW 4,000,000, KRW 5,00,00,000, KRW 1,000,00,000,00,000.

In this factual basis, the information related to the merger between the non-indicted 1 and the non-indicted 4 corporation is an undisclosed information which is important information that has not been disclosed to the general public before the disclosure of the information about the merger between the non-indicted 1 corporation and the non-indicted 4 corporation (see Supreme Court Decision 2000Do2827 delivered on November 24, 2000 that any information is still subject to the non-indicted 2 corporation's prohibition of using undisclosed information under Article 188-2 of the Securities and Exchange Act until it is disclosed by the intent of the corporation under the conditions as prescribed by the Ordinance of the Ministry of Finance and Economy). However, even if the non-indicted 2 corporation notified the non-indicted 3 of this information in advance, it is difficult to find it difficult to find that there is no information gap between the non-indicted 2 corporation and the non-indicted 1 corporation. The defendant 2 recommended the acquisition of convertible bonds through the non-indicted 1 corporation and the non-indicted 2 corporation, and it appears that there were no grounds for this part of the charges.

According to the court below's comprehensive examination and examination of various evidences lawfully examined and adopted on the road; non-indicted 1 corporation's 70 billion won in order to carry out stock swap transactions with non-indicted 4 corporation; the non-indicted 2 corporation obtained approval of the non-indicted 5 corporation's asset management company, which takes over 1 billion won at par value of 4 billion won from non-indicted 1 corporation and 500,000,000 won; thus, it was possible for the non-indicted 2 to explain and obtain approval of the above merger plan from non-indicted 3; however, the non-indicted 3's "this approval is impossible" was consulted with the non-indicted 2 and the non-indicted 1 corporation's non-indicted 70,000 won in order to obtain early redemption of convertible bonds from the non-indicted 3 corporation; the non-indicted 2 corporation's non-indicted 5's non-indicted 1 corporation's non-indicted 70,000 won in exchange for this reason.

According to these facts, Defendant 2 can sufficiently recognize the fact that Defendant 2 provided money and valuables with an illegal solicitation, and there is no possibility of expectation to Defendant 2. Thus, the above assertion by Defendant 2 is groundless.

(3) Defendant 3 [Defendant 3]

In full view of the evidence duly examined and adopted by the court below, the defendant 3 listens to the statement that there was a good transaction by telephone from the defendant 1 on March 20, 201, and he recommended that the defendant 1 and the non-indicted 4 corporation acquire the same effect as the merger through stock swap transaction on March 25, 2001 (the investigation record No. 485 through 486), and that the defendant 1 and the non-indicted 4 corporation were allowed to acquire the shares (the above defendant 1 and the non-indicted 1 and the non-indicted 2 were allowed to acquire the shares of the non-indicted 1 and the non-indicted 4 corporation on April 7, 201, the defendant 1 and the non-indicted 1 and the non-indicted 2 were allowed to acquire the shares of the non-indicted 3 corporation on the condition that the defendant 4 and the non-indicted 1 and the non-indicted 3 corporation will not receive the shares of the non-indicted 4 corporation on the condition that the defendant 2 will be ".".

(4) Ex officio determination (Defendant 2, Defendant 3)

ex officio, the court below suspended the execution of imprisonment with prison labor, which is a part of the above punishment, after having sentenced the defendant 2 and the defendant 3 to both imprisonment with prison labor and the fine, and omitted its explanation in the relevant legal section. Thus, the part on the defendant 2 and the defendant 3 among the judgment below is no longer maintained in this respect.

(5) Defendant 4 (Misunderstanding or misunderstanding of legal principles)

Examining the evidence legitimately examined and adopted by the court below (in particular, the suspect examination protocol against the defendant prepared by the prosecutor), Defendant 4 did not have a total of 8,944,306 shares and 2,480 shares per share using the account in the name of Defendant 4 opened at around April 27, 201, and purchased at around 12:146,063 shares or 1,256 shares at the same price as stated in the judgment of the court below, such as purchasing orders for 1,256,706 shares or 4 shares; Defendant 4 did not have any error of law in purchasing 30 shares or 40 shares from around 26th of the same month to May 2 of the same year (the number excluding Nonindicted 13 shares or 4 shares); Defendant 4 did not have any error in purchasing 300 shares or 460 shares in the issuance of new order using the name of Defendant 40 shares or 540 shares at the same price among new securities issued at around 30:59:49:

4. Conclusion

Therefore, since the appeal by Defendant 4 is without merit, it is dismissed in accordance with Article 364(4) of the Criminal Procedure Act, and it is so decided as per Disposition. The facts charged by the Prosecutor as to Defendant 1 and the remaining facts charged as to Defendant 1, who did not appeal, are indivisible in accordance with the former part of Article 37 of the Criminal Act, since all the facts charged as to Defendant 1 and the facts charged as to Defendant 1, who did not appeal, are in an exaggerated relationship pursuant to the former part of Article 37 of the Criminal Act, they do not proceed further to determine the grounds for appeal by Defendant 1, who is excessively unreasonable. In accordance with Article 364(6) of the Criminal Procedure Act, the part on Defendant 1 among the judgment below as to Defendant 2 and Defendant 3 among the judgment below, shall be reversed ex officio pursuant to Article 364(2) and

Criminal facts

Defendant 1 was in office as a managing director of Nonindicted Co. 4 from March 2000 to February 2002, and currently in office as the representative director, Defendant 2 was in office as a major shareholder of Nonindicted Co. 1 from around 1999, and Defendant 3 and Defendant 4 are investors of each share.

1. The case holding that the non-indicted 4 corporation and the non-indicted 1 corporation's non-indicted 5's shares were transferred to the non-indicted 1 corporation on March 200. The non-indicted 5's shares were transferred to the non-indicted 1 corporation in the name of the non-indicted 1 corporation and the non-indicted 4 corporation's shares were transferred to the non-indicted 1 corporation after the merger with the non-indicted 1 corporation and the non-indicted 2 corporation's shares were transferred to the non-indicted 5's shares to the non-indicted 1 corporation to the non-indicted 40 billion won. The non-indicted 5's shares were transferred to the non-indicted 1 corporation after the merger with the non-indicted 1 corporation and the non-indicted 1 corporation's shares were transferred to the non-indicted 1 corporation to the non-indicted 4 corporation for the same purpose as that of the non-indicted 2 corporation's transfer of shares to the non-indicted 1 corporation after the merger with the non-indicted 1 corporation.

A. Defendant 1 in collusion with Defendant 2:

In contact with Defendant 3 from March 20, 201 to April 2001, Nonindicted Co. 1: “Nonindicted Co. 1 shall make stock exchanges with Nonindicted Co. 4; Nonindicted Co. 10 shall make an investment; Nonindicted Co. 1 shall make an investment with Nonindicted Co. 4; Nonindicted Co. 1 shall make an agreement to acquire one unit of convertible bonds issued by Nonindicted Co. 1’s company due to a large number of stock prices of Nonindicted Co. 1’s Co. 3; Defendant 1’s office in Gangnam-gu, Seoul; Defendant 1 shall sell one unit of convertible bonds at KRW 1085 million; and Defendant 2 shall make a contract with Nonindicted Co. 3 on April 24, 2001 to acquire the new shares of Nonindicted Co. 1 in the name of Nonindicted Co. 4; and from April 24, 2001 to the public in the name of Nonindicted Co. 1’s company; and thereafter, it shall be recovered from Nonindicted Co. 3’s existing shares to the public in the name of Defendant Co. 15’s shares.

B. Defendant 2

(1) In collusion with Defendant 1

In the manner described in paragraph (a) above, the above defendant 3 used important information that was not disclosed to the general public in connection with the business of the non-indicted 1 corporation as an executive officer and major shareholder of the non-indicted 1 corporation, such as having the above defendant 3 acquire and trade the convertible bonds of the non-indicted 1 corporation in connection with the securities transaction of the non-indicted 1 corporation.

(2) On April 24, 2001, one unit was respectively accepted in the name of the defendant, one billion won, and one unit was transferred in the name of the non-indicted 6, each of the non-indicted 6's KRW 1.87 billion, and the securities account in the name of the defendant opened in the name of the non-indicted 6's branch of Samsung Securities and the securities account in the name of the non-indicted 6's name opened in the name of the defendant in the name of the non-indicted 6's branch of Samsung Securities on the same day, and on May 9, 2001, one unit of the convertible bonds acquired by lending the non-indicted 6's name was sold to the non-indicted 7 for about KRW 2.9 billion, and acquired profits from the market price of approximately KRW 1.813 billion, and used important information that was not disclosed to the public in connection with the trading of securities of the non-indicted

C. Defendant 3

As described in paragraph (1) (b)(1) above, the above defendant 1 and the above defendant 2 acquired information on mergers between the non-indicted 1 and the non-indicted 4 corporation, and acquired the above convertible bonds, and used important information that was not disclosed to the general public in connection with the business of the non-indicted 1 corporation, the officer and the major shareholder of the non-indicted 2, who were registered in the KOSDAQ, in connection with the business of the non-indicted 1 corporation.

D. At the request of Nonindicted Co. 5’s staff in charge of managing the assets of Nonindicted Co. 2, Nonindicted Co. 5, upon requesting that Nonindicted Co. 3 take over the above convertible bonds, Nonindicted Co. 5’s employees would give KRW 52,500,000 per unit of convertible bonds with a reward for this demand, in total, KRW 175,000 per unit of convertible bonds.

(1) Defendant 1, Defendant 2, or Defendant 3 in collusion

Defendant 1 stated to Defendant 3 that “The acquisition price of KRW 1.85 million, in addition to the acquisition price of KRW 1.75 million, shall be prepared in cash and given to Defendant 2” Defendant 3, on April 17, 2001, by allowing Defendant 3 to withdraw KRW 175 million in cash at the Gangnam Branch of Korea, through Nonparty 12, Dongin-in, Dongin, Hannam University, through Dongin Non-Party 12, and deliver it to Defendant 2, Defendant 2, near the same day, at the same time, distributed KRW 175 million in cash to the above Non-Party 3.

(2) Defendant 1 and Defendant 2 conspired

Defendant 1 provided Defendant 2 with a security of KRW 1.4 billion deposit of Nonindicted Co. 4’s stock company deposited at the Hague branch in Cho Heungung Bank to receive a loan of KRW 1.26 billion from the above branch, and around the 20th day of the same month, Defendant 2 provided the above Nonindicted Co. 3 with a reward of KRW 350 million in cash at the above Nonindicted Co. 3 in the parking lot near the seeds and seedlings parking lot located in Jongno-gu Seoul Metropolitan Government;

giving money or valuables to a person who administers another’s business in making an unjust solicitation in respect of his duties;

3. Where a person acquires 5/100 or more of the total number of stocks, etc. of a stock-listed corporation or Association-registered corporation, he/she shall, within five days from such day, report the changes in the number of stocks, etc. to the Financial Supervisory Commission and the Stock Exchange within five days from such day, if the holding ratio is changed by not less than 1/100.

A. Defendant 2

(1) Around April 24, 2001, the conversion price of KRW 860 per share is 2,325,580 per share in the case of acquiring two convertible bonds of Nonindicted Co. 1 Co. 1, a stock company with a face value of KRW 2.0 billion per share and converting it into shares, without reporting its holding status within five days from that date, even though it acquired 13,696,162 share and 16.9% of the total number of outstanding shares;

(2) On May 9, 2001, even if one of the above convertible bonds was sold to Nonindicted 7, it did not report the change rate within five days from that day, and

B. Defendant 3

(1) Around April 24, 2001, a conversion price of KRW 860 per share is 1,162,790 per share when acquiring KRW 1 billion per share of the convertible bonds of Nonindicted Co. 1 Co., Ltd. and converting it into the shares, the total number of shares issued 13,696,162 share is 8.5 percent per share, but the status of ownership is not reported within five days from that date;

(2) Around June 7, 2001, on condition that the above defendant 2, etc. would receive 500,000 shares of the non-indicted 1 corporation from the above defendant 2, etc., the company sold the above convertible bonds to the above company, but did not report the change ratio within 5 days

4. Defendant 4

No person shall make a false or misleading transaction that leads to a change in the market price of securities with the intention of inducing the transaction on the securities market or Association brokerage market, or cause a false or misleading transaction to cause a change in the market price, with the intention of inducing the transaction on the securities market or Association brokerage market.

On April 27, 2001: (a) around 12:48:12, 201; (b) the purchase price of KRW 2,480 per share was 1,146,06,063 per share using an account opened in the name of the defendant in the business register of securities; and (c) the purchase price of KRW 1,256,70 per share was 1,256,70,06 at the same price; and (d) from around 26th of the same month to May 2 of the same year, the highest purchase order was issued 8,944,306 high-priced shares over 14 occasions (excluding Nonindicted 13 accounts) from around 14:59:49 of the same month; (c) the purchase price of KRW 2,70 per share was 1,06,000 per share in the name of the defendant opened in the same branch of new interest securities; and (d) the purchase order of KRW 391,304,00 per class 39.

Summary of Evidence

The summary of the evidence of the defendant's criminal facts recognized by this court is as shown in the corresponding column of the judgment of the court below, except for the addition of "non-indicted 3's partial statement of the witness of the court of first instance" and "non-indicted 1's confidentiality agreement", so all of them are cited in accordance with Article 369 of the Criminal Procedure Act.