209Do4662 Violation of the Securities and Exchange Act

1. grandchildren****************************

Residential Suwon City

Standard place of registration:

*********************** (*)

Residence Nam-si

Reference domicile Daejeon

*********************** (*)

Housing Guang-si

Olsan City on the original domicile

*********************** (*)

Housing Sung-nam City

Seoul basic domicile

************************

Residence and Original domicile Seoul

*********************** (*)

Residentialization City

Seoul basic domicile

7. Kim○○○ (*************************))

Residential Pyeongtaek-si

Sung-nam City of service place

[Reference domicile] Chuncheon City

Defendants

Attorney Cho Jae-soo and Han-dong (for defendant's hand),

Attorney Lee Hong-soo and Scaria (for Defendant 2)

Attorney Ansan-ju (for defendant's error and Kim Jong-ok)

Law Firm Yun Law Firm (Attorney Lee Young-chul, and Mancheon (Defendant Lee In-bok)

Seoul High Court Decision 2008No3397 Decided May 15, 2009

February 25, 2010

All appeals are dismissed.

We examine the grounds of appeal.

1. We examine the remaining Defendants’ grounds of appeal except Defendant B.

A. First, we examine the argument that the instant information is not a “material information that is not disclosed to the public”.

(1) Article 188-2 (1) of the former Securities and Exchange Act (amended by Act No. 8863 of Feb. 29, 2008; hereinafter referred to as the "Act") prohibits a certain person from using or allowing another person to use material information that is not disclosed to the public in connection with the trading of securities of a corporation. Paragraph (2) of the same Article provides that "the term "material information that is undisclosed to the public" means information that may have a significant impact on investors' investment judgment among information on facts falling under any subparagraph of Article 186 (1) and that falls under any subparagraph of Article 186 (2) and that prior to disclosure to the public by the relevant corporation under the conditions as prescribed by the Ordinance of the Ministry of Finance and Economy." Paragraph (2) of the same Article provides that "any material information that falls under any subparagraph of Article 186 (1) (hereinafter referred to as the "Act") is prohibited from being disclosed to the public, and it shall not be deemed that it constitutes an important one of the grounds for appeal No. 208 of the Supreme Court's decision and its decision No. 2081.

(2) In light of the legislative intent of Article 188-2 of the Act which provides for the prohibition of insider trading, "information that may have a significant impact on investors' judgment on investment" means information that may have a significant impact on the management of the corporation, and if a reasonable investor is determined by comparing and assessing the information's importance and possibility of having a serious impact on the management of the corporation, the decision for the transaction of securities is made.

It is reasonable to interpret that information that is thought to have an essential value is, and further, it does not require that information should be objectively clear and reliable (see Supreme Court Decision 93Do695 delivered on April 26, 1994).

The lower court’s determination that, even if part of the instant information was partially false or exaggerated, the importance of the instant information itself cannot be denied on this ground is justifiable as it is in accordance with the aforementioned legal doctrine.

(3) Article 188-2 (2) of the Act provides that "Any material information that has not been disclosed to the public is "B prior to the disclosure of such information to many people under the conditions as prescribed by the Ordinance of the Ministry of Finance and Economy". Thus, until such information is disclosed by the corporation's will under the conditions as prescribed by the Ordinance of the Ministry of Finance and Economy, the information is still subject to the prohibition of using undisclosed information (see, e.g., the above Decision 200Do2827).

원심이 같은 취지에서, 이 사건 정보가 ▣▣▣의 공정공시를 통하여 일반에 공개되기 전에 신문 등에 나의 개발이 완료되었다는 취지의 기사들이 게재된 사실은 인정되나, 위 기사들이 ▣▣▣의 의사에 의해 게재된 것으로 보이지 아니하고 위 각 기사에 시연회 개최에 관한 언급이 전혀 없었던 점 등을 고려하면 이 사건 정보는 미공개정보에 해당한다고 판단한 것은 정당하고, 거기에 상고이유로 주장하는 바와 같이 미공개정보 이용행위 금지규정의 해석 및 적용에 관한 법리오해 등의 잘못이 없다 .

B. We examine the remainder of Defendant O’s grounds of appeal.

The summary of the Defendant O’s assertion is that the part of the transaction after the disclosure of the instant information on November 10, 2005 should be excluded from the calculation of the “profit accrued from the violation”.

In light of the records, the above defendant did not make the above assertion in the petition of appeal and the statement of grounds of appeal, and it is difficult to regard it as legitimate grounds for appeal, and therefore, the court below did not consider it as legitimate grounds for appeal. Since the court of final appeal is ex post facto review of the judgment of the appellate court, matters not subject to adjudication in the appellate court are not within the scope of the judgment of the court of final appeal. Thus, the grounds other than those that the defendant did not assert as grounds for appeal in the appellate court or that the appellate court is subject to adjudication ex officio, cannot be deemed as the grounds for final appeal (see Supreme Court Decision 2007Do4310, Jul. 24, 2008). This part of the ground for final appeal cannot be a legitimate ground for final appeal (in addition, in light of the first instance court and the evidence duly investigated and admitted by the court of final appeal, it cannot be deemed that there was any error

C. We examine the remaining grounds of appeal by Defendant Kim○-○.

In light of the records, the judgment of the court below is just in holding that the above defendant was aware of the information of this case in the course of performing his duties and engaged in stock transaction using it, and there is no error of violating the rules of evidence as alleged in the grounds of appeal.

2. We examine the Defendant’s grounds of appeal.

A. The purport of the law that allows the court to specify the facts charged by specifying the time, place, and method of a crime is to limit the object of a trial against the court and to facilitate the exercise of the right of defense by specifying the scope of defense against the defendant. As such, the specification of the facts charged is sufficient to specify the facts underlying the prosecution by stating the time, time, place, method, purpose, goods, etc. to the extent that it can distinguish the facts underlying the prosecution from those of other facts charged. Even if part of the facts charged are somewhat unclear, the validity of the indictment does not affect all other matters indicated together so long as the facts charged can be specified by such other matters (see Supreme Court Decision 2008Do1664, Jul. 10, 2008).

위 피고인에 대한 공소사실은 " 피고인은 2005. 10. 경 위 연구원에서 교육연수사 업실장으로 근무하여 수차례 주간업무회의 등에 참석하면서 이 사건 정보를 지득하고 , 같은 해 11. 2. 부터 같은 달 4. 까지 피고인 명의의 증권 계좌를 통하여 ▣▣▣ 주식 5, 900주를 매수한 다음, 위 정보가 일반인들에게 공시된 2005. 11. 10. 이후에 이를 매도하여 합계 101, 894, 420원 상당의 부당이득을 취득하였다 " 라는 것인바, 이 사건 정보를 지득한 일시, 경위가 다소 불명확하게 적시되어 있기는 하나, 위 주식의 매수 및 매도 시기, 수량, 금액 등이 모두 구체적으로 적시되어 있으므로, 전체적으로 보아 위 피고인의 방어권 행사에는 아무런 지장이 없을 정도로 특정되어 있다고 할 것이다 .

나. 원심은 그 판시와 같은 이유에서 위 피고인이 ▣▣▣의 주식을 매매함에 있어 이 사건 정보를 이용한 사실을 인정할 수 있다고 보아 제1심판결을 파기하고 위 피고인에 대하여 유죄판결을 선고하였는바, 기록에 비추어 살펴보면 위와 같은 원심의 판단은 정당하고 거기에 상고이유로 주장하는 바와 같이 미공개정보의 이용에 관한 법리오해 또는 채증법칙 위반의 잘못이 없다 .

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon,

Justices Kim Young-young

Justices Kim Gi-hwan

Justices Min Il-young