Defendant 1 and three others

Defendant 1 and one other and prosecutor

Park Ho-ho et al.

Law Firm Barun, Attorneys Kim Jae-ho et al.

Seoul Central District Court Decision 2008Gohap569, 720 (merged), 721 (Consolidated) Decided January 22, 2009

Of the judgment of the court below, the guilty portion against Defendant 4 shall be reversed.

Defendant 4 shall be punished by imprisonment with prison labor for a period of two years and six months and a fine of eight billion won.

When Defendant 4 fails to pay the above fine, Defendant 4 shall be confined in a workhouse for the period calculated by converting the amount of KRW 20 million into one day.

181 days of detention before the pronouncement of the judgment below shall be included in the above imprisonment with prison labor for Defendant 4.

To order the provisional payment of an amount equivalent to the above fine against Defendant 4.

All appeals by Defendant 1 and by the Prosecutor against the Defendants are dismissed.

1. Summary of grounds for appeal;

A. Defendant 1

(1) misunderstanding of facts or misapprehension of legal principles

(A) On the evasion of compulsory execution

Defendant 1 had been transferred 44.3 million dollars from Nonindicted 1 to Nonindicted 1, but he believed this money to be the money of a foreign creditor in accordance with the horses of Nonindicted 1. Defendant 1 left Defendant 2 of a long-term mutual appearance with no place where share certificates should be kept in the Republic of Korea without being aware of the existence of the claim against Nonindicted 6 Corporation 1 and the application for provisional attachment on the share certificates of Nonindicted 7 Stock Companies. As such, Defendant 1 had no awareness of the purpose of evading compulsory execution and the exemption from criminal punishment at the time of departure, the above facts charged have already been completed and there was no intention to commit a crime of evading compulsory execution.

(B) As to the violation of the Securities and Exchange Act

1) Violation of the principle of non-defluence

Although the prosecutor instituted a public prosecution against Defendant 1 with Defendant 4, not Defendant 1, the lower court determined Defendant 1 as the person who calculated the funds of Defendant 1 without any changes in the indictment.

(2) Violation of obligation to report in bulk.

Since Defendant 4 borrowed funds from Defendant 1 and traded stocks under the name of ○○○, etc. and held the authority to dispose of the profits accrued therefrom, the obligation to report possession in bulk is borne by Defendant 4, and Defendant 1 did not have such obligation.

3) The point of fraudulent fraudulent transactions

① Defendant 1 purchased shares in ○○○○’s name upon Defendant 4’s request on September 2006, when he decided to purchase ○○○○○’s shares for the purpose of investment, and was entrusted to Nonindicted 5 to purchase shares in accordance with the business practice. Nonindicted 5 purchased shares in ○○○’s name. The participation in the capital increase for new shares was based on Nonindicted 5’s practical judgment, and there was no conspiracy to attract a large number of foreign funds by participating in the name of 3 foreign corporations, and the omission that did not make a report on the current status of shares held in ○○○○○. Rather, Defendant 1 was liable to report the purchase of shares in ○○○○○’s name, and there was no agreement with Defendant 4 to acquire bonds with warrants, and Nonindicted 5’s statement contrary thereto did not reveal the fact that Defendant 1 was in violation of the Securities and Exchange Act after Defendant 4 was able to obtain false information from Defendant 1.

② ○○○ 명의로 주식을 매수한 것은 사기적 부정거래에 해당하지 아니하므로 부당이득 계산에 있어서 그 거래일을 사기적 부정거래의 개시 시점으로 삼을 수 없고, 사기적 부정거래와 부당이득 사이에 인과관계가 없으며, 부당이득액도 ⊙⊙⊙ 우회상장 효과를 공제한 나머지 효과, 즉 사기적 부정거래 자체로 인하여 주가가 상승함으로써 발생한 이익에 한정되어야 한다.

(2) The assertion of unreasonable sentencing

The sentence of the lower court (two years of imprisonment, five years of suspended execution, and fine 17.2 billion won) is too unreasonable.

B. Defendant 4

(1) misunderstanding of facts or misapprehension of legal principles

(A) As to the violation of the Securities and Exchange Act

1) The point of fraudulent fraudulent transactions

피고인 4가 그 모친 공소외 8과 함께 ■■■ 주식 100%를 소유하여 피고인 4로서는 사실상 개인자금과 ■■■ 자금을 엄격히 구분하지 못하고 ■■■에서 차용한 250억 원을 자기자금으로 공시한 것뿐이므로 이를 공시의무위반으로 문제 삼을 수 있을지언정 사기적 부정거래로까지 보기 어렵다.

그리고 상피고인 1이 피고인 4와 함께 □□□에 투자함에 있어서 상피고인 1의 외국법인과 ○○○ 명의로 주식을 매매 내지 인수한 것은 외국펀드가 실제로 투자(주식 매수 및 BW 인수)를 한 것이므로 ‘외국펀드를 유치한 듯한 외양을 갖추는 위계를 썼다.’라고 할 수 없고, □□□ 주가 상승은 ⊙⊙⊙의 우회상장에 대한 기대감에 의한 것일 뿐 투자 주체가 외국인이냐와는 아무런 상관이 없으므로 부당이득과 인과관계가 없다. 또한, 외국펀드가 실제로 주식을 매매하고 그로 인한 □□□의 외국인 투자지분 변동사실이 차명주주인 ○○○의 보유주식 변동을 통해 시장에 알려질 수밖에 없으므로 ‘외국인들의 정상적인 투자나 지분변동이 있는 것과 같은 오해를 유발하였다.’라고 할 수 없다. 특히나, 피고인 1은 재무적 투자자로서 장기투자를 하기로 되어 있던 사람이고, 실제로 피고인 1의 ●●●는 신주인수권부사채(BW)를 인수한 후 이를 그대로 보유하다가 2008. 4.경 신주인수권을 행사하여 주식 90만 주를 취득하여 보유하고 있는 점에서 허위사실이 아니며, 취득자금에 관한 공시는 □□□의 주가 상승에 아무런 직접적인 영향을 주지 못하였다.

The amount of unjust enrichment should be limited to the profits acquired by Defendant 4 as the share price increases due to the remaining effects after deducting the effect of the right ofpass listing, i.e. the fraudulent fraudulent act itself.

2) Points of inducing price decline

It was an inevitable process for Nonindicted 3 and 2 to dispose of their shares prior to the acceptance of the △△ agreement, which was classified as a non-friendly share, rather than selling them in the country with the intention of lowering the issuance of the new shares in △△, with the intention of lowering the price, and there was no intention for Defendant 4 to reduce the price of △△△ share.

3) The point of collusion and sale

Defendant 4 did not have been involved in the method of selling orders or heading, and only was the process of getting the shares of Nonindicted 3 and 2 to ○○○○ account of Defendant 1. As such, Defendant 4 did not have any intention to mislead the other party to make a wrong judgment, or to let the other party make a wrong judgment.

(B) As to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation)

피고인 4의 재력과 ■■■ 대주주 지위 등에 비추어 ■■■가 피고인 4에게 대여한 250억 원의 회수를 우려할 상황이 전혀 아니었고 실제로 피고인 4로부터 대여원리금을 불과 석 달도 못되어 전액 상환받았으므로 배임죄가 성립하지 아니하고, 설사 배임죄가 성립한다고 하더라도 손해액은 자금의 대여 기회(유동성)를 제공한 것에 불과하다.

(2) The assertion of unreasonable sentencing

The sentence of the lower court (one year of imprisonment, a fine of 17.2 billion won) is too unreasonable.

(c) Prosecutors;

(1) misunderstanding of facts or misapprehension of legal principles

(A) As to Defendant 1’s violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Mediation and Acceptance)

The facts that Nonindicted Party 1 solicited Nonindicted Party 1 to Defendant 1 for the expenses for the old name of △△ Group are as already recognized by the lower court, and the facts charged by Defendant 1 are found guilty on the grounds that Nonindicted Party 1 had the right to manage the shares of Nonindicted Party 7 Co. 7, 2580,000 and Nonindicted Party 7 Co. 1 in return for the solicitation of the expenses for the old name of △△ Group to Defendant 1 by the second statement of the lower court (which was June 12, 2008, June 16, 2008, and July 16, 200) and the right to manage the shares of Nonindicted Party 1, in return for the solicitation of the expenses for the old name of △△ Group to Defendant 1.

(B) As to Defendant 1, 2, and 3's violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation)

In full view of the fact that over-the-counter trading prices on the Internet website do not have data on trading volume, transaction subject, etc., and thus, the conversion price of convertible bonds can not be determined as the basis when calculating the conversion price of convertible bonds in the quantity changed to that of one shareholder. Of the various methods of assessing the price of Nonindicted Co. 7’s stock price, the objective exchange value for Nonindicted Co. 7’s stock price is 12,940 won per share even if calculated by the net asset value assessment method most favorable to the above Defendants, and the U.S. EDS presented the price of KRW 20,500 per share through the close investigation of Nonindicted Co. 7’s company, and accepted it by Defendant 1. It is clear that the conversion price of convertible bonds is 5,00 won significantly and that property damage incurred to Nonindicted Co. 7’s stock

(C) As to the violation of the Securities and Exchange Act by Defendant 1’s inducement of price decline, circulation, and false disclosure of its own funds

Even if Defendant 1 was unaware of Defendant 4’s act of false disclosure of market price decline, ordinary trade, and one’s own fund, this act was anticipated to be accompanied by deceptive schemes and misunderstanding-causing act using foreign pestcom, etc., and thus, Defendant 1 and Defendant 4 had an implied communication with each other. In full view of the following: (a) Defendant 1 and Defendant 4 had already conspired with Defendant 4 in the entire process of violation of Article 188-4 of the Securities and Exchange Act; and (b) Defendant 1 had been recognized as co-principals with regard to each of the following acts: (c) inducement of market price decline, traffic, and false disclosure of one’s own fund.

(D) As to the violation of the Securities and Exchange Act against Defendant 4 by violating the duty to report possession in bulk

Since Defendant 4 is the party who calculates the funds of Defendant 1, or is the joint principal offender of a violation of the Securities and Exchange Act between Defendant 1 and Defendant 1, Defendant 4 may not be exempted from the liability of accomplices for a violation of the duty to report ownership.

(2) Unreasonable sentencing

Each sentence against Defendant 1 and 4 of the lower court is too unhued so as to be unfair.

2. Judgment on the grounds for appeal

A. misunderstanding of facts as to the evasion of compulsory execution against Defendant 1

The court below rejected Defendant 1’s claim for the completion of the statute of limitations and convicted Defendant 1 of the above facts charged, by clearly explaining the part on “the determination of Defendant 1, 4, and their defense counsel’s assertion” in the judgment of the court below as to the same argument as that of the grounds for appeal.

Examining the reasoning of the judgment below in light of the records and the legal principles properly explained by the court below, the fact-finding and judgment of the court below are just, and there is no error of law by misunderstanding facts or by misapprehending the legal principles

B. misunderstanding of facts as to the violation of the Securities and Exchange Act against Defendant 1 and 4

(1) As to Defendant 1’s assertion on the non-defluence principle

If there is no concern about substantial disadvantage to the defendant's exercise of his right to defense, it does not violate the principle of no accusation even though the court recognized facts different from the facts charged without going through changes in indictment within the same extent (see Supreme Court Decision 2006Do1667, Jun. 15, 2006, etc.).

원심은, 그 채택 증거들에 의하여, 피고인 4가 피고인 1의 자금을 이용하여 ○○○ 명의로 주식을 매수한 이후 ○○○, ▲▲▲, ◇◇◇ 및 ◆◆◆ 명의로 주식거래를 하였으나 그 자금을 인출하거나 인출요구를 한 적이 없는 점, 피고인 1이 2006. 11. 20.로 예정된 신주인수권부사채 인수대금 납입을 연기하고 피고인 4의 모친 공소외 8로부터 손실보장 취지의 약정서를 작성받은 후에야 인수대금을 납입한 점 등을 종합하여, 피고인 1이 그 자금에 관한 계산 주체라고 인정하였다.

In light of the above legal principles and the records, the change of Defendant 1’s funds from Defendant 4 to Defendant 1 without following the amendment process constitutes a case where the alteration of the premise facts in the facts charged or the alteration of the basic facts within the same scope as the facts charged does not pose a substantial disadvantage to Defendant 1’s exercise of defense rights. Thus, the above measures of the court below are just, and there are no errors in the misapprehension of legal principles as to the amendment of indictment as alleged in the grounds for appeal.

(2) As to Defendant 1’s violation of the duty to report in bulk

Since Defendant 1 is the subject of calculating funds, it is also Defendant 1, and thus, Defendant 1 is also the subject of attribution of profit and loss as a result of the disposal of stocks purchased in the name of ○○○○ or ○○○○○○○○ or ○○○○ is an asset management company, and thus, Defendant 1 is also liable to report the stocks held in bulk. Therefore, the judgment of the court below to

(3) As to the fraudulent fraudulent transactions against Defendant 1 and 4

(A) The false disclosure of the details of raising funds for acquiring shares by Defendant 4

The court below acknowledged that the disclosure of the acquisition fund of stocks and bonds with warrants by a major shareholder as “self-fund” is clear in light of the empirical rule to the effect that it would affect ordinary investors’ judgment on investment by eliminating the fear of large-scale sale in the market and by preventing the expectation that the stock price will be maintained in the future. The court below held that it was reasonable to view that Defendant 4 caused misunderstanding by making a false disclosure because the disclosure of the acquisition fund of stocks and bonds with warrants affects ordinary investors’ judgment on investment.

Examining the reasoning of the judgment below in light of the records, the fact-finding and judgment of the court below are just, and there is no error of law affecting the judgment.

(B) The part concerning Defendant 1 and 4’s deceptive schemes and misunderstanding-causings using foreign pesters against Defendant 1 and 4, and the part concerning false information in the process of acquiring bonds with warrants

원심은, 그 채택 증거들에 의하여, 피고인 4가 ■■■로부터 차용한 250억 원의 상환자금을 마련할 방법으로 신주인수권부사채의 고가매도 외에 다른 방법이 없어 처음부터 이를 계획한 점, 피고인 4가 유상증자에 피고인 1 소유의 3개 외국 페이퍼컴퍼니를 참여시킴으로써 일반투자자들로서는 ◎◎그룹과 관련된 피고인 4의 배경 등에 비추어 외국기관투자자 또는 다수의 외국인투자자들이 정상적인 투자판단을 거쳐 투자한 것으로 오인할 가능성이 있다는 것은 경험칙상 명백한 점, 피고인 4가 ○○○ 및 피고인 1의 외국법인 명의로 □□□ 주식을 매도·매수한 내역을 살펴보면 그 거래량 및 거래가격 등에 비추어 이는 정상적인 거래라기보다는 외국인 지분의 활발한 변동이 있는 것과 같은 외관을 갖추려는 의도적인 거래로 밖에 볼 수 없는 점, 피고인 1은 피고인 4와 사전에 상의하여 시세차익만을 목적으로 2006. 10. 18.경 피고인 4로부터 ●●● 명의로 신주인수권부사채 90만 주를 405억 원에 인수하였음에도, 피고인 4는 피고인 1과 사전에 합의한 대로 언론에 ‘ ●●●가 □□□의 가치를 높이 평가하여 장기보유를 목적으로 투자한 것’이라는 취지의 허위사실을 유포한 점 등을 인정한 다음, 이러한 사정들에 비추어 보면, 피고인 4, 1이 외국인투자자들의 정상적인 투자가 있는 것처럼 위계를 사용하고 허위사실을 유포함으로써 상당한 규모의 시세차익을 얻었다고 봄이 상당하다고 판단하였다.

원심이 적절하게 설시한 위 사정들에, 원심이 적법하게 채택하여 조사한 증거들과 피고인 4의 당심 일부 법정 진술에 의하여 인정되는 다음 사정들, 즉 피고인 4가 사전에 코스닥등록기업을 인수하여 ⊙⊙⊙과 합병하는 방법으로 ⊙⊙⊙을 우회 상장시키되, 이에 필요한 자금은 주로 ■■■에서 차용하는 차용금과 평소 친분이 있으면서도 외국법인을 소유한 피고인 1의 돈으로 조달하였다가, 외국법인 명의로 대량 주식거래를 하는 경우 발생하는 외국인투자 효과가 ⊙⊙⊙의 우회상장이라는 기대감과 서로 상승작용을 일으키도록 함으로써 인수대상기업의 주가를 충분히 끌어올린 다음, 인수대상기업의 신주 또는 신주인수권부사채를 매도하여 그 대금으로 차용금을 변제하고, 자금과 외국법인을 제공한 피고인 1에게는 상당한 규모의 시세차익을 갖도록 한다는 종합적인 계획을 세운 점, 피고인 4는 이러한 계획에 피고인 1을 끌어들인 다음 사전 계획에 따라 피고인 1의 자금과 외국법인을 이용하여 □□□ 주식에 관한 거래를 하면서도 주식시장에는 사전계획 내용이 일체 알려지지 않도록 한 점 등을 더하여 보면, 피고인 4, 1이 공모하여 원심 판시와 같이 사기적 부정거래를 한 사실을 넉넉하게 인정할 수 있으므로, 이 점에 관한 원심의 사실인정 및 판단은 정당한 것으로 수긍이 가고, 거기에 사실오인 또는 법리오해로 판결에 영향을 미친 위법이 없다.

(C) The causal relationship between fraudulent illegal transactions and unjust enrichment and the calculation of unjust enrichment

위에서 본 사정들에 터잡아 보건대, 피고인 1, 4가 외국인투자자들의 정상적인 투자가 있는 것처럼 위계를 사용하고 허위사실을 유포하여 일반투자자들로 하여금 □□□ 주식을 매수하도록 유인함으로써 주가가 상승하도록 하거나 주가하락을 방지하여 그 기회에 위 피고인들의 주식을 매도하여 상당한 규모의 시세차익을 얻었다고 봄이 상당하므로, 사기적 부정행위와 부당이득 사이에 인과관계는 인정된다 할 것이고, 이는 주가가 ◎◎가 3세에 의한 ⊙⊙⊙ 우회상장이라는 호재에 의해 상승한 측면이 있다고 하더라도 위와 달리 볼 것이 아니므로, 이와 결론을 같이한 원심의 판단은 정당하고, 거기에 사실오인 내지 법리오해의 위법이 없다.

또한, 상장유가증권의 시세조종 등 불공정거래 행위자가 그 위반행위로 얻은 이익에 시세조종에 의한 주가상승으로 얻은 이익으로서의 성질과 그 밖의 행위 내지 주가상승요인에 의한 주가상승으로 얻은 이익으로서의 성질이 불가분으로 결합한 경우 그 전부가 불가분으로 시세조종에 의한 주가상승으로 얻은 이익으로서의 성질을 가진다고 할 것인바, 이러한 법리에 비추어 보면, 원심이 ○○○, ▲▲▲, ◆◆◆ 및 ◇◇◇ 명의로 □□□ 주식을 매수 또는 신주인수를 하였다가 장내에서 매도한 차액 약 172억 원 전체를 피고인 1, 4가 시세조종 등 불공정거래로 얻은 부당이득으로 판단한 것은 정당하고, 거기에 사실오인 내지 법리오해의 위법이 없다.

(4) As to Defendant 4's inducement of price decline

Article 188-4 (2) of the former Securities and Exchange Act (amended by Act No. 8635, Feb. 4, 2009; hereinafter the same shall apply) provides that "the purpose of inducing a trade transaction" is to make an artificial manipulation and to make a fluctuation in the market price, but the investor is not at issue as to whether the market price exists for other purposes or its main purpose is to mislead the misunderstanding that the market price was formed by the principle of natural demand and supply in the securities market and to attract the sale and purchase of securities, and the degree of awareness of the purpose is sufficiently insufficient. Meanwhile, the "transaction that misleads the misunderstanding that the market price of securities is being formed in the free competition market or changes the market price" provided for in subparagraph 1 of the same Article refers to a transaction that causes an artificial change in the market price and trading volume to be formed in the free competition market according to its original normal demand and supply, and there is no need to do so until the market price is actually changed (see Supreme Court Decision 2013Do434, May 2013, 2016).

The court below found, based on its adopted evidence, that Defendant 4 promised to pay the difference to Nonindicted 2 and 3, and ordered Defendant 4 to sell the shares by lowering the price in the future. In fact, due to Nonindicted 2 and 3’s sales orders, etc., the price of the new shares was reduced from KRW 8,190 to KRW 6,800 on September 27, 2006, and Nonindicted 4, who proposed the specific acceptance plan to Defendant 4, stated in the court of the court of the court below and the prosecutor’s office that “The shares of Nonindicted 2 and 3 were sold to lower the issue price of the new shares.” In light of this, it is reasonable to deem that Defendant 4 had an intention to reduce the market price in order to determine the issue price of the new shares to lower the issue price of the new shares, and this is also the same even if Defendant 4 had the purpose of securing the shares of Nonindicted 2 and 3.

Examining the reasoning of the judgment below in light of the records and the above legal principles, the fact-finding and judgment of the court below are justified, and there is no error of law affecting the judgment.

(5) As to the conspiracy and sale with Defendant 4

Article 188-4 (1) of the former Securities and Exchange Act provides that "the purpose of causing a misunderstanding of a misunderstanding of a misunderstanding of a misunderstanding of the misunderstanding of the misunderstanding of the misunderstanding of the misunderstanding of the misunderstanding of the misunderstanding of the misunderstanding of the misunderstanding of the misunderstanding of the misunderstanding of the misunderstanding of the misunderstanding of the misunderstanding of the misunderstanding of the misunderstanding of the misunderstanding of the misunderstanding of the misunderstanding of the misunderstanding of the misunderstanding of the misunderstanding of the misunderstanding of the misunderstanding of the misunderstanding of the misunderstanding of the misunderstanding of the misunderstanding of the misunderstanding of the misunderstanding of the misunderstanding of the misunderstanding of the misunderstanding of the misunderstanding of the misunderstanding of the misunderstanding of the misunderstanding of the misunderstanding of the misunderstanding of the misunderstanding of the misunderstanding of the misunderstanding of the misunderstanding of the misunderstanding of the misunderstanding of the misunderstanding of the misunderstanding of the misunderstanding of the misunderstanding of

The court below found, based on its adopted evidence, that Defendant 4 ordered Nonindicted 2 and 3 to issue a selling order, and ordered Nonindicted 5 to issue a purchase order under the name of ○○○○○, and that Defendant 4 had caused the purchase and sale transaction. However, the court below held that Defendant 4 had a purpose of causing ordinary investors to make a wrong judgment as if there had been natural transactions of foreign investors.

Examining the reasoning of the judgment below in light of the records and the above legal principles, the fact-finding and judgment of the court below are justified, and there is no error of law affecting the judgment.

C. misunderstanding of facts as to Defendant 4’s violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Misappropriation of trust)

원심은, 그 채택 증거들에 의하여, 피고인 4가 처음부터 주가상승 후 신주인수권부사채를 매도하여 ■■■에 차용금을 변제하려고 계획하였던 사정 등을 인정하고, 이에 터잡아, 차용금이 변제기에 변제될지 여부가 주가 상승이라는 불확실한 요소에 좌우되고 있었던 이상 ■■■에 손해 발생의 위험성이 있었다고 판단하였다.

In light of the above facts acknowledged by the court below's judgment, i.e., the defendant 1 acquired bonds with warrants from the defendant 4 to the extent of the actual increase in the subscription price of the convertible bonds due to the failure to pay the subscription price for the bonds with warrants by the defendant 4, the above judgment of the court below is just, and since the risk of damages exists, the amount of damages is the total amount of the loan amount, and there is no error of law such as misunderstanding of facts alleged by the defendant 4 in the judgment of the court below.

C. Prosecution's assertion of mistake

(1) As to Defendant 1’s violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Mediation and Acceptance)

(A) Summary of the facts charged

As the president of the former △△ Group in 1997, △△ Group was faced with liquidity crisis and from 1998, △△ Group was faced with dissolution crisis or insolvency. From the end of 1998, Defendant 1 was aware that Defendant 1 was the presence of the former president of the △△ Group in 1998, and Defendant 1 was aware that Defendant 1 was the presence of the former president of the 10th △△ Group.

On December 198, Non-Indicted 1 and △△△ Restructuring Headquarters reported the results of restructuring pursuant to the financial restructuring agreement concluded with the claims group by December 1998 to the companies exclusively responsible for the management of △△△ affiliated companies and △△△ affiliated companies by the fifth day of each following month, and the restructuring coordination headquarters shall jointly take the results of restructuring of affiliates, and report the results to the Cheongdae Economic Secretary, the department in charge of the treatment of the Japanese bank, the △△△○ Bank, and the credit supervisory bureau

공소외 1은 ▼▼호텔 펜트하우스 등에서 피고인 1에게 △△그룹의 어려운 사정을 설명하고 △△구조조정 본부장 공소외 11, 계열사 사장 공소외 12 등과 함께 △△그룹의 유동성 문제를 해결하기 위하여 기업어음(CP) 만기연장, 회사채 발행 허용, D/A(외상수출어음) 할인 허용 등이 필요하다는 취지를 공소외 10 전 대통령을 비롯한 고위공무원 등에게 전달해 줄 것을 부탁하였고, 대가로 피고인 1에게 경제적 이익을 주기로 마음먹었다.

On the other hand, Nonindicted Co. 7, as an affiliate of △ Group that creates profits without liabilities, concluded a MOU with the MOU and reported the results of attracting foreign capital to the Government around June 1999, and the electronic exchange business of Nonindicted Co. 9 (hereinafter “Nonindicted Co. 9”) concluded a MOU to sell approximately KRW 400 billion to the U.S. New Town around December 1998, but each of the above sales negotiations had a negative impact on the liquidity crisis of △△△△△△ on June 1999. In order to maintain the performance through the restructuring of foreign capital already reported to the Government, Nonindicted Co. 1 should report to the Government as if it was successful in attracting foreign capital through other foreign corporations.

When Nonindicted 1 is faced with a situation in which the result of restructuring through inducement of foreign capital should be reported to the government, Nonindicted 1 changed the shape of attracting foreign capital by making stocks or business acquisition in the name of a foreign corporation owned by Defendant 1, te. Defendant 1 provide funds to Defendant 1, and Defendant 1 provided that Nonindicted 7 Co. 7 held by Nonindicted Co. 13, etc. can exercise management rights by issuing stocks in the form of selling stocks to Defendant 1. ② It is proposed that Nonindicted 9 Co. 9 will be able to participate in the business in the manner of investing part of the funds he remitted to Defendant 1 in the name of a foreign corporation owned by Defendant 1, and that the principal and interest was returned when profits occur due to the increase of stock price of Nonindicted Co. 7 or Joint Venture Co. 1. Defendant 1 approved this.

Nonindicted 1 remitted USD 44,30,000,000 on June 24, 1999, including USD 24,330,000,000 on June 25, 199, and USD 20,000,000 on June 25, 199 (in exchange rate, approximately KRW 52.6 billion on exchange rate) to the account of Nonindicted Co. 14, a Hong Kong, a foreign financial organization of △ Group, as a document managing △△ Group. Gendale Ltd, a company, which is a foreign financial organization of △△ Group.

On June 30, 1999, Defendant 1 purchased 2,580,000 shares of Nonindicted Incorporated Company 7 in the name of Nonindicted Incorporated Company 14 (71.59% of the total issued shares), transferred USD 20 million from the account of Nonindicted Incorporated Company 14 to the account of Nonindicted Incorporated Company 15 in the U.S. on June 29, 199, and then transferred the aforementioned money to the account of Nonindicted Incorporated Corporation 15 in the U.S. on June 30, 199, to the account of Nonindicted Incorporated Company 15 in the joint venture between Nonindicted Incorporated Company 15 and Nonindicted Incorporated Company 9 and then used it as contract deposit.

Defendant 1 received a solicitation from Nonindicted Party 1 to assist in the rehabilitation of △△ Group in relation to the corporate restructuring and financial support, which are matters belonging to the duties of the President and the public officials of the financial authorities, in return for the solicitation thereof, Defendant 1 received the benefits of KRW 2580,000,000 used as the capital stock of Nonindicted Company 7 in the name of Nonindicted Company 14 at June 30, 199 to assess the value per share of Nonindicted Company 7 at the time of June 30, 199 and thereby, KRW 24,330,000,000,000 used as the capital for acquiring Nonindicted Company 9 TDX business and the opportunity to participate in the above business.

(B) Defendant 1’s legal action

Defendant 1 met Non-Indicted 1 with the solicitation of the △△ Group and the Dong-dong in relation to the △△ Group. Unlike his awareness, Non-Indicted 1 did not make a solicitation for the expenses for the Gu name of △△ Group, but rather, made an investment by leaving USD 75 million from a foreign actual staff member who can be mobilized by Russia, and incurred a loss or KRW 4,300,000,000,000. The government should report the results of attracting foreign capital to the government. As such, Defendant 1 received a personal request to the effect that Defendant 1’s acquisition of Non-Indicted 7 and Non-Indicted 9’s TDX business in the name of a foreign corporation and paid 75,00,000,000 dollars.

(C) As to whether Nonindicted 1 delivered a benefit in return for the good offices to Defendant 1

1) Judgment on the prosecutor's evidence submitted by the court below

As seen above, there are some prosecutor's statements on June 12, 2008, the prosecutor's statements on June 16, 2008 and the second court's statements on July 1, 2008 and the second court's statements on July 1, 2008. In light of the following circumstances, it is difficult to see that the judge has credibility enough to exclude a reasonable doubt, and it is difficult to believe this is, as it is,.

① First, on June 1, 2008, Nonindicted Party 1 made a statement to the effect that Nonindicted Party 1 made a solicitation to the △△ Group expenses and paid the consideration to Defendant 1 until the second statement of the prosecution on June 1, 2008, Nonindicted Party 1 made a statement to the effect that, on June 12, 2008, Nonindicted Party 1 made a solicitation to the △△ Group’s old name and made a 30% of the shares of Nonindicted Party 7 Co. 16 purchased at USD 24.3 million in return, Nonindicted Party 1 made a statement to the effect that Nonindicted Party 1 made a solicitation to the △ Group’s △ Group’s △ Group’s 3th statement on June 12, 2008, Nonindicted Party 1 did not make a statement to the effect that, in return, Nonindicted Party 1

② On June 16, 2008, Nonindicted Party 1 sent USD 44,30,00 to Defendant 1 in return for the 4th statement made by the Prosecutor’s Office on June 16, 2008, stated that “The Defendant sent USD 4,43,00,00 to Defendant 1, and the share price was at the time of the purchase of Nonindicted Company 7’s shares, and the principal would be repaid and the remaining profits would be settled. Nonindicted Party 1 established a joint venture and operated the business sector of Nonindicted Company 9, and paid USD 20,000 as the down payment, while managing the business sector of Nonindicted Company 9, and Defendant 1 paid KRW 7’s shares in the name of Nonindicted Company 14. After which Defendant 1 purchased Nonindicted Company 7’s shares in the name of Nonindicted Company 14, it was assumed that 30% of the shares in Nonindicted Company 7’s shares should be granted to Nonindicted Company 16

③ On June 17, 2008, Nonindicted Party 1, through the Nonindicted Party 1’s counsel, revealed the time and details of the solicitation, the prosecution’s specific opinion on the consideration for solicitation, and stated the same as the facts charged at the time of the fifth statement made by the prosecution on June 18, 2008. However, in light of the above circumstances of the statement, it is doubtful that the prosecution first expresses the opinion of Nonindicted Party 1 on the part of the prosecution about the case, and then, it is doubtful that Nonindicted Party 1 did not make a statement accordingly.

④ 공소외 1은 2008. 5. 27. 압수·수색을 당한 이후 강제집행면탈 및 위장계열사 문제 등으로 수사를 받으면서 스트레스를 받아, 2008. 8.경부터 조울증으로 ◑◑병원 정신과에서 치료를 받았고, 이러한 이유를 들어 원심의 증인소환에 응하지 않다가, 재소환을 받고 2008. 10. 24. 원심 법정에 1차로 출석하여 진술함에 있어서 검사와 변호인의 질문에 비교적 명확하게 대답하면서도 특히 알선의 대가 부분에 관하여는 검사의 유도질문에 대하여도 구체적인 진술 없이 검찰 마지막 조서대로 해달라고 하거나 오히려 “외자유치 및 외국 채권자에 대한 채무변제를 위한 순수한 마음으로 피고인 1에게 부탁했고, 피고인 1도 순수하게 승낙했다.”라는 취지로 진술하였고, 나아가 “(검찰이) 자료를 갖다가 보내주었다. 내가 보고 이렇다면 못 가겠다. 이렇게 복잡하게 하면 도저히 할 수가 없다. 그래서 알았다고 그래서 거기에 맞추어서 그냥 나온 것입니다.”라고 진술하여 검찰의 마지막 진술이 검찰에 의해 유도된 것이 아닌가 하는 의심을 더욱 강하게 한다.

⑤ On the other hand, Non-Indicted 1 was indicted for evading compulsory execution on July 9, 2008. On September 25, 2008, he was sentenced to a suspended sentence of two years on September 25, 2008 and became final and conclusive as is October 3, 2008. On October 24, 2008, the date of the first testimony of the court below, the prohibition of departure, which was previously placed in Vietnam on October 24, 2008, left Vietnam and was staying there. On December 31, 2008, Non-Indicted 1 testified to comply with the contents and charges of the fifth interrogation protocol of the prosecution for the second testimony of the court below, and testimony to comply with the contents of the prosecution's interrogation protocol and the charges.

2) Determination on Nonindicted Party 1’s legal statement

Unlike the previous prosecutor's office and the court below's statement in the court for the first time, the non-indicted 1 stated that "if it was simply for the purpose of attracting foreign capital and paying debts, he would have chosen another person who would have been well aware of (i) he would not be Defendant 1, and (ii) would have been aware of the fact that he would have been aware of the fact that he would be able to be aware of the fact that he would receive much amount of foreign creditors prior to the transfer of money to Defendant 1 in return for expenses for the name of △△ Group, but he thought that he would have received as much as possible prior to the transfer of money. However, after the lapse of the time when the money was transferred, he requested by Defendant 1 to give 30% of the shares of the non-indicted 7 corporation to the non-indicted 16, and later, he would have agreed to ensure at least 50% of the shares of the non-indicted 1 to be paid to the non-indicted 1's company and the non-indicted 2 corporation's statement to the effect that he would have to be 17)."

3) Sub-determination

Therefore, since the above facts charged against Defendant 1 constitute a case where there is no proof of crime, it is just for the court below to render a not-guilty verdict of the above facts charged, and there is no violation of the rules of evidence or mistake of facts as pointed out

(2) As to Defendant 1, 2, and 3's violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation)

(A) Summary of the facts charged

Defendant 1 was the actual owner of Nonindicted Co. 14, a major shareholder of Nonindicted Co. 7, who controls Nonindicted Co. 7; Defendant 2 was the auditor of Nonindicted Co. 7; and Defendant 3 was the representative director of Nonindicted Co. 7.

The Defendants conspired with the Korea Asset Management Corporation that Nonindicted Co. 14 would take stocks of Nonindicted Co. 7 and issued convertible bonds at a low price to move control over Nonindicted Co. 7 to Defendant 1’s foreign corporation.

Defendant 1, around November 2005, appointed Defendant 3 as the representative director of Nonindicted Co. 7 and ordered Defendant 2 to issue convertible bonds at the same time, and Defendant 2 and Defendant 3 decided to issue convertible bonds at the board of directors around February 2006.

Defendant 2 and 3 had the occupational duty to assess an appropriate conversion price by evaluating the actual value of stocks through legitimate procedures, such as a resolution of the board of directors, and thereby, it was only the board of directors’ resolution on February 14, 2006 on the issuance of domestic private placement conversion bonds. However, on March 3, 2006, the minutes of the false meeting of the board of directors were prepared by the shareholders of Nonindicted Co. 7 until March 10, 206. There were cases where the shareholders of Nonindicted Co. 7 traded the stocks of Nonindicted Co. 7 in KRW 20,500 through KRW 45,00 per share. In order that the U.S. EDR would acquire Nonindicted Co. 7’s stocks at the end of the year of 2004, it accepted this price by presenting the price of KRW 20,50 per share in KRW 20,000 per share, taking into account the net asset value of Nonindicted Co. 7, 2006’s capital value per share.

그런데 피고인 2, 3은 적정한 전환가격 산정을 위한 어떠한 평가절차도 거치지 아니한 채 주식의 실제가치보다 현저하게 낮은 주당 5,000원을 전환가격으로 정함으로써 신주인수권부사채 1,040만 달러 상당을 제3자 배정방식으로 발행하고, 피고인 1이 이를 인수한 다음, 2007. 11. 13.경 자신의 페이퍼컴퍼니인 ▲▲▲ 명의로 주당 5,000원의 전환가격에 주식으로 전환하여 공소외 7 주식회사 발행 주식 총수의 약 34.5%에 해당하는 203만 1,536주를 취득하였다.·

이로써 피고인들은 ▲▲▲로 하여금 위 주식 발행분의 실제가치에 해당하는 416억 4,648만 8,000원(EDS가 실사 후 제시한 주당 20,500원 기준) 내지 340억 8,511만 1,008원(상속세 및 증여세법의 평가법에 의한 주당 16,779원 기준)과 피고인 1의 전환사채 인수대금 101억 5,768만 원 사이의 차액인 314억 8,880만 8,000원 내지 239억 2,743만 1,008원 상당의 재산상 이익을 취득하게 하고 공소외 7 주식회사에 같은 금액 상당의 재산상 손해를 가하였다.

(B) Defendant 1, 2, and 3’s legal actions

In a situation where Nonindicted Co. 7 received system maintenance and repair services from △ Group affiliate affiliates until 2011, and △△ Group is dissolved, as long as it is necessary to develop a new business replacing △ Group affiliate affiliates of △△ Group, it is necessary to issue bonds with warrants to raise funds necessary to enter into new businesses according to the management consulting result of ES Korea, and Defendant 1 acquired them. The stocks of Nonindicted Co. 7 were actively traded in the off-the-counter market by minority shareholders holding approximately KRW 50% of the total number of issued stocks in early 2006, and they were actively traded in the outside-the-counter market. Based on the market price, there was a transaction performance within three months from the Inheritance Tax and Gift Tax Act to raise the market price, and since working persons calculated the conversion price to the average of three months of market price of the outside-the-counter market, the conversion price is appropriate.

(C) The judgment of the court below

In the case of stocks issued by a corporation which is not listed on the Stock Exchange or is not registered on the Stock Exchange, if there is an example of normal transactions that properly reflects the objective exchange value, the transaction price shall be deemed the market price and the value of the stocks shall be evaluated. On the other hand, the method of evaluating unlisted stocks under Article 54 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act is merely a supplementary method of assessment, and the appraised value calculated by it shall not be immediately deemed the value of stocks (see Supreme Court Decision 2001Do3191, Sept. 28, 2001).

EDS가 2004년에 제시한 주당 20,500원의 가격은 회사의 객관적 교환가치가 반영된 정상적인 거래의 실례라고 보기 어렵고, 그 반면에 인터넷 주식정보제공 사이트 ◈◈(www. ◈◈.com) 및 ▣▣(www.38.co.kr)에서 매일 제공되는 공소외 7 주식회사 주가는 특별히 거래당사자가 통정하였다거나 불합리하게 조작되었다고 보이지 않는 점에서 공소외 7 주식회사 주식에 대한 객관적 교환가치가 반영된 정상적인 거래 실례로 보이고, 전환사채 발행을 검토하기 시작한 2006. 1.경 이전 약 6개월 동안 4,000원 대에서 형성되다가 전환사채 발행 검토 무렵부터 상승하기 시작하여 전환사채 발행 결정 무렵 최고가를 보인 후 다시 하락하여 2006. 6. 중순경 내지 7. 초순경부터 약 6개월 동안 6,000원 대에서 형성된 점에서 공소외 7 주식회사 주식에 대한 객관적 교환가치를 반영한 정상적인 거래에 따른 주가는 주당 5,000원 내지 6,000원 사이라고 봄이 상당하며, 전환사채의 표면금리, 만기, 전환 청구기간, 공소외 7 주식회사의 사업성 등에 비추어 보면, 전환가격을 주당 5,000원으로 정했다고 하여 이를 현저히 낮은 가격이라고 볼 수 없으므로, 피고인들에 대한 위 공소사실은 범죄의 증명이 없는 경우에 해당한다.

(D) Judgment of the court below

원심판결 이유를 기록에 비추어 살펴보면, 원심의 이러한 사실인정과 판단은 정당하고, 검사가 당심에서 주장하는 바와 같이 ◈◈ 사이트가 2005. 4. 21.부터 2005. 11. 17.까지 공소외 7 주식회사 주가를 제공하지 않았다거나 공소외 7 주식회사 주식에 대한 회원사간 대체현황상 1회에 거래되는 양이 최소 100주에서 많게는 5,000주에 불과하다고 하더라도, ◈◈이 정보를 제공하지 않는 기간에 대하여 ▣▣이 공소외 7 주식회사 주가에 관한 정보를 제공하고 있고 그 밖의 기간 두 사이트상 주가 흐름이 비슷한 점 및 장외거래는 양도소득세 등의 문제로 회원사간 대체되지 아니한 경우가 많은 점 등에 비추어 보면 위와 달리 볼 것은 아니므로, 원심판결에 검사가 지적하는 바와 같은 판결 결과에 영향을 미친 위법이 있다고 할 수 없다.

(3) As to the violation of the Securities and Exchange Act against Defendant 1

(A) The inducement of market price decline and the part of the conspiracy sale

1) Summary of the facts charged

Defendant 1 in collusion with Defendant 4:

① In order to artificially lower the third party’s allotment of shares issued and the issue price of the bonds with warrants during the process of acquiring △ e-mail, which is a KOSDAQ-listed corporation, and to attract the sale, the sale and purchase is ordered by Nonindicted 2, who held the shares of △ e-mail around September 27, 2006, to sell at lower price than 8,190 won immediately preceding 50 shares, and to make Nonindicted 2, 3, and Defendant 4 pay sales orders at KRW 8,000 with a lower price than 190 won than 8,190 won, as shown in the attached list of crimes in the judgment of the court below, such as: (a) Nonindicted 2, 29 times in total as shown in subparagraph (i) of the attached list of crimes; and (b) Nonindicted 328,058 shares held or managed by Defendant 4, thereby bringing about a fluctuation in the market price; and (c) make the sale and purchase transactions to reduce the market price by lowering the market price.

② The purpose of Nonindicted 2 and 3’s transfer of the shares held or managed by Defendant 1 in the name of ○○○, which is the account used by Defendant 1, thereby misleading the investment of global investment banks in the process of △△ merger and acquisition of terms and conditions, thereby creating a luxal situation or causing ordinary investors to make a wrong judgment;

On September 27, 2006, around 15:24:25, an account opened in the name of ○○○○○, in which Nonindicted Party 2 purchased KRW 7,300,00 of shares of 10,000 as a closing price on the day, and concluded a trading of 12,528 shares by ordering Nonindicted Party 2 to sell 13,463 shares at the same price, thereby having Nonindicted Party 2 sell 13,463 shares at the same price, etc., as shown in the attached list of crimes in the judgment below, and traded shares held or managed by Nonindicted Party 2,3, and Defendant 4 at a total of six times as shown in the attached list of crimes in (2) of the judgment below.

2) Determination

In light of the fact that the inducement of market price and the conspiracy trading are not necessarily accompanied in the process of acquiring a company, the court below held that it is not sufficient to find Defendant 4 guilty of this part of the facts charged solely on the fact that Defendant 1 committed an act of inducing market price and negotiating through Defendant 1’s fund and account, and that the evidence submitted by the prosecutor alone alone was insufficient to recognize the fact that Defendant 1 caused Defendant 4 to use funds and account while recognizing or forecasting the inducement of market price and the conspiracy trading, and that the above facts charged constitute a case where there is no evidence to prove the crime.

In light of the records, the court below's fact-finding and judgment are just, and there is no error of law by misunderstanding legal principles or misunderstanding of facts as pointed out by prosecutor

(B) The false disclosure of its own funds

1) Summary of the facts charged

피고인 1은 상피고인 4와 공모하여, 피고인 4는 사실 ■■■로부터 250억 원을 차용하여 □□□의 인수자금으로 사용하였음에도 불구하고, 신주인수권부사채 및 구주 인수에 관한 취득자금 내역에 관하여 2006. 10. 13.경 금융감독위원회 등에 ‘주식 등의 대량보유상황보고서’를 제출하면서 차입금이 없는 것처럼 ‘자기자금’이라고 기재하여 허위로 공시하고, 2006. 10. 20.경 금융감독위원회 등에 ‘취득자금 등의 조성경위 및 원천내용보완서’를 제출하면서 여전히 ‘배당소득으로 조성된 자기자금’이라고 기재하여 허위로 공시하고, 제3자 배정 유상증자 참여에 관하여 금융감독위원회 등에 ‘주식 등의 대량보유상황보고서’를 제출하면서 ‘배당소득과 이자소득으로 구성된 자기자금’이라고 기재하여 허위로 공시하였다.

2) Determination

원심은 검사가 제출한 증거만으로는 피고인 1이 상피고인 4가 □□□ 인수과정에서 ■■■로부터 250억 원을 차용하였음에도 이를 자기자금인 것처럼 허위로 공시할 것을 인식하거나 예상하고서도 자신의 자금과 계좌를 이용할 수 있게 해줌으로써 □□□의 인수를 가능하게 해주었다는 사실을 인정하기에 부족하고, 달리 이를 인정할 만한 증거가 없으므로, 위 공소사실은 범죄의 증명이 없는 경우에 해당한다고 판단하였다.

In light of the records, the court below's fact-finding and judgment are just, and there is no error of law by misunderstanding legal principles or misunderstanding of facts as pointed out by prosecutor

(4) As to the violation of the Securities and Exchange Act against Defendant 4

(A) Summary of the facts charged

Defendant 4, in collusion with Defendant 1 on September 28, 2006, did not report to the Financial Supervisory Commission and the Korea Securities Dealers Association by October 12, 2006, even though he/she held at least 5% of the total number of issued and outstanding shares by purchasing at least 290,936 shares of ○○○○ in the name of ○○○○, and violated the obligation to report on possession of shares on eight occasions in total as shown in the attached list of crimes (4).

(B) Determination

The lower court, based on its adopted evidence, found that Defendant 1’s possession of stocks as the owner of the capital as the owner of the stock [the part of the judgment on the Defendant’s and his defense counsel’s assertion [the judgment on March 2, 2007 Gohap720] was subject to the duty to report ownership, and the evidence submitted by the prosecutor alone is insufficient to acknowledge the fact that Defendant 4 is a joint owner of stocks, and there is no other evidence to acknowledge it. Thus, the lower court determined that the above facts charged constituted a case where there is no evidence to prove a crime.

In light of the records, the court below's fact-finding and judgment are just, and there is no error of law by misunderstanding legal principles or misunderstanding of facts as pointed out by prosecutor

D. Defendant 1, Defendant 4, and the Prosecutor’s argument on unreasonable sentencing

(1) First, as to the violation of the Securities and Exchange Act common to Defendants 1 and 4

피고인 4는 ◎◎가 3세라는 출신 배경을 등에 업고 ⊙⊙⊙을 우회 상장하는 과정에서 주식시장에서 많은 투자자가 외국인투자자를 기관투자자 및 개인투자자와 함께 시장의 중요한 세력으로 인식하면서 그들의 투자동향에 민감한 관심을 보이는 것을 최대한 이용하기로 하고, 마치 피고인 4와 결탁하지 않은 외국인투자자들이 주식시장의 자유로운 수요·공급의 원칙에 따라 □□□ 가치를 높이 평가하여 적극 투자하는 듯한 외관을 만들어 우회상장의 기회에 □□□ 주가를 최대한으로 끌어올림으로써 인수자금을 용이하게 회수함과 아울러 인수합병 후 ⊙⊙⊙(레드캡투어으로 명칭 변경)의 시가 총액을 높여 코스닥시장과 여행업계에서 그 지위를 높이고자 하는 계획을 치밀하게 세운 다음, 이러한 계획에 들어맞는 사람으로 미국 시민권자이면서도 많은 자금과 여러 개의 외국법인을 소유하고 있는 피고인 1을 끌어들여 외국인투자자가 투자하는 듯한 외관을 만드는 방법으로 이 사건 증권거래법위반의 범행을 주도하여 자신의 자금을 얼마 들이지 않고도 성공적으로 ⊙⊙⊙을 우회 상장시켰다.

On the other hand, Defendant 1, who agreed to receive considerable profits from the market price by Defendant 4, provided the name of his own funds and several foreign corporations, and acquired enormous profits from the market price manipulation of KRW 17.2 billion for a short period of time during which he participated in the market price manipulation and does not know for two months for his own account.

Market manipulation is a crime that disturbs the stock market, which is a valuable factor in the capital market, and it is inevitable to impose severe punishment in light of the fact that the nature of the crime is very bad and the amount of unjust enrichment is 17.2 billion won. In view of Defendant 4's leading of the crime, although the total amount of unjust enrichment belongs to Defendant 1, it is deemed that Defendant 4's responsibility is larger.

However, unlike the typical stock price increase and decline pattern in the case of the typical market price manipulation, the maximum amount of 38,550 won has been increased to 38,50 won on the basis of the closing price, and the minimum amount of 25,350 won has been maintained for one year after the decline. In light of the fact that the closing price of April 14, 2008, where Defendant 1’s convertible bonds were converted to Defendant 1’s stocks during the process of the stock price decline since the beginning of 2008 due to the U.S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. 13,300 won, and July 9, 2008, which was the date of prosecution against Defendant 4, maintaining KRW 9,290,00, it should be considered in sentencing.

(2) Defendant 1

Defendant 1’s crime of evasion of compulsory execution was committed by recovering public funds, thereby nullifyinging the compulsory execution against the stocks of Nonindicted Co. 7, which was practically promoted on a national level to reduce the burden of national tax burden. The former president of Nonindicted Co. 10, when she retired from office and his domestic location has deteriorated, and thus, the crime is not good that Defendant 1 returned to the U.S. in order to escape from criminal punishment on the belief that the statute of limitations expired by using the U.S. citizen who was the citizen of the Republic of Korea. However, the above shares are confiscated at the investigation agency and ultimately will be attributed to the State.

In addition, in full view of the sentencing conditions indicated in the record, including Defendant 1’s age is currently old, there is no particular criminal history, and the fact that Defendant 1 has contributed to the development of society by returning to the society the father such as holding an international conference with a scholarship, etc., a suspended sentence is imposed on Defendant 1, and the lower court’s sentence that imposed the total amount of unjust enrichment acquired by the said

(3) Defendant 4

피고인 4가 ■■■ 대표이사 등에게 지시하여 은행으로부터 대출받도록 하여 그 자금을 차용하는 등 독립한 법인인 ■■■를 사금고처럼 사용한 점에서 죄질이 좋지 않지만, 모친과 함께 ■■■ 주식 100% 소유하고 있어 ■■■가 사실상 그의 1인 회사이고 차용금을 단기간에 모두 변제함으로써 ■■■의 재무구조 부실화 위험을 조기에 해소한 점을 피고인 4에게 유리하게 고려한다.

In addition, Defendant 4’s age, character and conduct, environment, criminal records, and motive and means of the instant crime, as well as various circumstances that form the conditions for sentencing as indicated in the records, such as the circumstances after the crime, etc., Defendant 4 cannot be exempted from punishment, but the lower court’s sentence that sentenced a fine of KRW 17.2 billion in imprisonment for three years seems to be somewhat unreasonable.

3. Conclusion

Therefore, since Defendant 4’s appeal is well-grounded, the part of the judgment below’s conviction against Defendant 4 is reversed pursuant to Article 364(6) of the Criminal Procedure Act, and it is again decided as follows through pleadings. Defendant 1’s appeal and prosecutor’s appeal against the Defendants are without merit. Thus, they are dismissed in entirety in accordance with Article 364(4) of the Criminal Procedure Act.

The summary of the facts charged and the evidence admitted by this court against Defendant 4 is the same as that of the judgment below, and thus, they are cited in accordance with Article 369 of the Criminal Procedure Act.

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 3(1)1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Articles 356, 35(2), and 30 of the Criminal Act (the occupation of occupational breach of trust, the choice of limited imprisonment), Article 207-2(2)1 and 2 of the former Securities and Exchange Act, Articles 188-4(1)1, 188-4(2)2, 188-4(4)1 and 2, Article 214 of the former Securities and Exchange Act, Article 43(1) of the Financial Investment Services and Capital Markets Act [the amount of profit by the market adjustment is 17.2 billion won or under any of the former Securities and Exchange Act or the Financial Investment Services and Capital Markets Act; however, it is possible to impose a fine if the amount of profit by the market adjustment is more than 30 billion won and the amount of fine is more than 500 billion won or less than the amount of fine is 30 billion won or less,” Article 214(1)4 of the former Securities and Exchange Act.

1. Aggravation of concurrent crimes;

Article 37 (Aggravation of Concurrent Punishment for Crimes of Violating Securities and Exchange Act, Articles 38 (1) 2 and 50 (Aggravation of Concurrent Punishment)

1. Discretionary mitigation;

Articles 53 and 55(1)3 and 6 of the Criminal Act

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Calculation in the number of detention days before sentencing;

Article 57 of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

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

Judges Cho Jae-jin (Presiding Judge)