[1] In a case where “the primary recipient of the information” has jointly participated in the act of “the secondary recipient of the information” using the information immediately at the stage of receiving the primary information, whether the “the primary recipient of the information” may be punished as an accomplice for a crime of violation of Article 188-2(1) of the former Securities and Exchange Act (affirmative)

[2] In a case where "the first information recipient" delivered undisclosed inside information to the defendant who is a "the second information recipient", and the defendant proposed to distribute profits after trading the shares of a specific company using such information, and the first information recipient conspireds to commit an offense with his consent, and thereafter sold the shares, the case holding that the court below found the defendant not guilty of the facts charged against the violation of the Securities and Exchange Act, and that the judgment below erred in the misapprehension of legal principles as to the establishment of a joint principal offender and the interpretation and application of Article 188-2 (1) of the former Securities and Exchange Act

[1] Articles 188-2 (1) and 207-2 (1) 1 of the former Securities and Exchange Act (amended by Act No. 8863 of Feb. 29, 2008) only punish the first recipient of the information who received the undisclosed inside information from the insider to use it or allow another person to use it in connection with the sale and purchase or other transaction of securities, and the first recipient of the information from the first recipient of the information to use it after the second recipient of the information from the first recipient of the information from the second recipient of the information from the second receipt of the undisclosed inside information from the second receipt of the information from the second recipient of the information from the second receipt of the undisclosed inside information from the second one from the inside of the prohibited acts of Article 188-2 (1) of the same Act, but the second recipient of the information can not be punished by the first recipient of the information from the first recipient of the information from the second one, the second recipient of the information from the second one, who used it from the second one, after the second receipt of the information from the second one.

[2] The case holding that in case where the first information recipient of the undisclosed inside information delivered such inside information to the defendant, and the first information recipient proposed to distribute profits from trading the stocks of a specific company using such information, and the first information recipient conspireds to commit the crime, and thereafter sold and purchased the stocks, the first information recipient shall be deemed to have moved to the commission of his criminal intent by using the act of trading the stocks of the defendant, an accomplice, even though the first information recipient did not directly conduct the stock transaction, and the first information recipient shall be deemed to have moved to the commission of his criminal intent by using the act of trading the stocks of the defendant, an accomplice, and the first information recipient's offering of most of the funds for purchasing the stocks, and the amount of 60% profit margin accrued from trading the stocks belongs to himself/herself, the above stock transaction by the defendant and the first information recipient constitutes an act of using the information immediately at the stage of receiving the first information at the first time, and the defendant shall be deemed to have

[1] Article 188-2 (1) of the former Securities and Exchange Act (amended by Act No. 8863 of Feb. 29, 2008) (see current Article 174 (1) of the Financial Investment Services and Capital Markets Act), Article 207-2 (1) 1 of the former Securities and Exchange Act (amended by Act No. 8863 of Feb. 29, 2008) (see current Article 443 (1) 1 of the Financial Investment Services and Capital Markets Act), Article 207-2 (2) 2 of the former Securities and Exchange Act (amended by Act No. 8863 of Feb. 29, 2008), Article 443 (2) 2 of the former Securities and Exchange Act (amended by Act No. 8863 of Feb. 29, 2008), Article 207-2 (2) 1 of the former Securities and Exchange Act (amended by Act No. 8863 of Feb. 29, 2008-2 of the current Securities and Exchange Act) 18

[1] Supreme Court Decision 2000Do90 decided Jan. 25, 2002 (Gong2002Sang, 616)

Defendant

Prosecutor

Attorneys Seo Han-chul et al.

Gwangju High Court Decision 2007No281 Decided July 10, 2008

The part of the judgment of the court below against the defendant is reversed, and that part of the case is remanded to the Gwangju High Court.

The grounds of appeal are examined.

The summary of the facts charged of this case is that Co-Defendant 1 and Co-Defendant 2 conspired with Defendant 1 and Co-Defendant 2 were not guilty on September 205, 1, 2005, and Co-Defendant 2, Co-Defendant 5 and Co-Defendant 1 were aware of the facts related to Co-Defendant 2’s internal trading of 00,000 won or less, and Co-Defendant 1 and Co-Defendant 2 was no longer than KRW 50,000,000,000,000,000,000 KRW 50,000,000,000,000,000,000 KRW 1 and KRW 50,000,000,000,000,000,000,000,000,000,000,000 won.

However, we cannot accept the above determination by the court below for the following reasons.

Article 18-2 (1) of the Act provides that if a listed corporation or KOSDAQ-listed corporation, its agent, major shareholder, or a person who enters into a contract with the corporation (hereinafter referred to as an “internal”) becomes aware of material facts which are not disclosed to the public in connection with the business of the corporation concerned, and the person who receives the information from such person (hereinafter referred to as the “first recipient of the information”) uses or has another person use the information in connection with the sale and purchase or other transaction of securities issued by the corporation, the second owner of the information shall be punished by imprisonment for not more than 10 years or a fine not exceeding 20 million won, and that the second owner of the information shall not be punished by the second owner of the information from the second owner of the information, and that the second owner of the information shall not use or have another person use the information in connection with the first sale and purchase or other transaction of securities issued by the corporation concerned, and that the second owner of the information shall also be punished by the second owner of the information under Article 188-2 (1) 2 of the Act.

However, according to the facts acknowledged by the court below, Co-Defendant 1 of the court below proposed that the defendant sold and sold the shares of Pakistan using the information of this case and distributed profits therefrom, and Co-Defendant 1 of the court below conspired to commit the crime of this case with the consent of Co-Defendant 1 of the court below, and accordingly sold and sold the shares of Pakistan as stated in the above facts charged. Thus, even though Co-Defendant 1 of the court below who was the first information recipient did not directly execute the stock transaction of Pakistan, Co-Defendant 1 of the court below should be deemed to have moved to the criminal intent by using the defendant's stock transaction act as co-defendant 1 of the court below, and most of the purchase funds of Pakistan were provided by Co-Defendant 1 of the court below, and the amount of 60% profit from the purchase of shares belongs to Co-Defendant 1 of the court below, the above share transaction of Co-Defendant 1 of the court below and Co-defendant 1 of the court below constitutes a joint participation of the court below's judgment.

Nevertheless, the court below found the defendant not guilty of the facts charged against the defendant on the ground that the defendant is merely a secondary recipient of the internal information of this case and does not constitute a person liable to prohibit the use of internal information of this case under Article 188-2 (1) of the Act, and that co-defendant 1 of the court below did not jointly participate in the act of using the internal information of this case at the stage when Co-defendant 1 received the information of this case more than one lane, it is erroneous in the misapprehension of legal principles as to the establishment of co-principal and the interpretation and application of Article 188-2 (1) of the Act, which affected the conclusion of the judgment.

Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)