[1] The meaning of "ordinary trading" under Article 188-4 (1) 1 and 2 of the former Securities and Exchange Act as one of market price manipulation, and whether the act of having the same person manage each account with delegation from the parties to whom different profits and losses belong, and thereby making each account trade at the same price at the same time constitutes a conspiracy trading (affirmative)

[2] The meaning and calculation method of "profit derived from a violation" under Articles 207-2 and 214 of the former Securities and Exchange Act

[3] Whether the “profit accrued from a violation” under Articles 207-2 and 214 of the former Securities and Exchange Act includes both the realized profit and the unrealized profit (affirmative), and the method of calculating the “unrealizedd profit”

[1] The pre-convenive trading stipulated under Article 188-4(1)1 and 2 of the former Securities and Exchange Act (repealed by Article 2 of the Addenda to the Financial Investment Services and Capital Markets Act, Act No. 8635 of Aug. 3, 2007) refers to the act of selling and buying (sale) securities at the same time as one of market price manipulation in which other person sells and sells them at the same price after the other person has conspired with the other person. Here, the other person refers to the person to whom the profits and losses accrued from the sale and purchase of securities belongs differently. The other person's act of managing and managing each account entrusted by the other with the management of each account from the person to whom the profits and losses accrued or causing other person to make a wrong judgment constitutes the above pre-convenive trading.

[2] Articles 207-2 and 214 of the former Securities and Exchange Act (repealed by Article 2 of the Addenda to the Financial Investment Services and Capital Markets Act, Act No. 8635, Aug. 3, 2007; hereinafter the same) provide that where the “profit accrued from the violation”, such as market price manipulation, exceeds a certain amount, statutory punishment for imprisonment shall be aggravated, and the upper limit of fines shall be increased. In addition, according to Articles 8 and 10 of the former Act on Regulation and Punishment of Criminal Proceeds Concealment (amended by Act No. 8719, Dec. 21, 2007), which are property generated from a criminal act such as market price manipulation under the former Securities and Exchange Act, illegal profits shall be confiscated and collected. In light of the aforementioned legal system, the “profit accrued from the violation” refers to the existence of risk and causal relationship between the gain accrued from the violation and the gain accrued from the violation in ordinary cases, the prosecutor bears the burden of calculating the difference between the total profit accrued from the transaction related to the violation and the share price increase.

[3] The “profit accrued from a violation” stipulated in Articles 207-2 and 214 of the former Securities and Exchange Act (repealed by Article 2 of the Addenda to the Financial Investment Services and Capital Markets Act, Act No. 8635 of Aug. 3, 2007) refers to all the profits accrued from the violation. Thus, the profits accrued from a specific transaction during the period of market price manipulation (hereinafter “realizing profit”) and the appraised profit of the stocks held at the time of the end of market price manipulation (hereinafter “unrealized profit”) must be included in all the profits accrued from the specific transaction during the period of market price manipulation. Unless there are special circumstances, unrealized profit should be calculated at the time of termination of market price manipulation. This is to calculate profits that are recognized as a causal relationship between the risk and the loss arising from the violation, and thus, when calculating realizing profit, it should not be calculated by deducting the transaction cost, etc. required at the time of actual disposition from the deduction.

[1] Article 18-4 (1) 1 and 2 (see current Article 176 (1) 1 and 2 of the Financial Investment Services and Capital Markets Act) of the former Securities and Exchange Act (repealed by Article 2 of the Addenda to the Financial Investment Services and Capital Markets Act, Act No. 8635 of August 3, 2007), Article 207-2 (see current Article 43 of the Financial Investment Services and Capital Markets Act) / [2] Article 207-2 (see current Article 43 of the Financial Investment Services and Capital Markets Act, Article 47 of the current Financial Investment Services and Capital Markets Act, Article 48 of the former Securities and Capital Markets Act, Article 207-4 (1) 1 and 2 (see current Article 176 (1) 1 and 2 of the Financial Investment Services and Capital Markets Act, Article 307 of the Financial Investment Services and Capital Markets Act, Article 308 of the former Securities and Capital Markets Act, Article 207 (see current Article 47) of the Financial Investment Services and Capital Markets Act)

[2] Supreme Court Decision 2009Do1374 Decided July 9, 2009 (Gong2009Ha, 1374), Supreme Court Decision 2009Do13890 Decided April 15, 2010 (Gong2010Sang, 954), Supreme Court Decision 2008Do5399 Decided July 28, 201 / [3] Supreme Court Decision 2001Do606 Decided December 12, 2003 (Gong2004Sang, 192), Supreme Court Decision 2010Do7406 Decided January 27, 2012

Defendant 1 and three others

Defendants

Law Firm, Kim & Lee LLC et al.

Seoul High Court Decision 2011No2152 decided October 20, 2011

The conviction part against Defendant 1 and the remaining Defendants of the judgment below are reversed, and this part of the case is remanded to the Seoul High Court.

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

1. As to the misapprehension of legal principles as to the purpose of stock price manipulation

A. Article 188-4 of the former Securities and Exchange Act (amended by Act No. 8635 of Aug. 3, 2007 and enforced as of Feb. 4, 2009, Article 2 of the Enforcement Decree of the Financial Investment Services and Capital Markets Act) prohibits unfair trading practices, such as manipulation of market prices. Among them, Article 188-4 of the former Securities and Capital Markets Act provides that “any person shall not engage in any act falling under any of the following subparagraphs, such as the pre-sale or pre-sale of, or pre-sale of, listed securities or securities listed on KOSDAQ, with the intention to make a wrong judgment.” Therefore, in order to establish a crime of violation of the above provision, it is difficult to recognize that there was a purpose as prescribed in the above provision, and it is not a matter of whether it exists other purpose or its main purpose. In addition, the degree of recognition of the purpose is sufficient if there is insufficient awareness of the investor's failure to do so, and it does not cause damages to other persons.

In addition, Article 188-4(2) of the same Act provides that no one shall commit an act falling under any of the subparagraphs “to attract transactions to the securities market or the KOSDAQ market”. The purpose of this Article is to make the investors mistake that the market price is formed by natural demand and supply principles in the securities market, etc., despite the fact that the market price changes due to artificial manipulation. This is to attract investors to purchase and sell securities by misunderstanding that the market price is formed by natural demand and supply principles in the securities market, etc. In addition, it is not problematic whether there exists the existence or purpose of other purposes, and there is sufficient recognition of the purpose.

Whether the requirements as above are satisfied can be determined by comprehensively taking into account various indirect facts such as the nature of securities and the total number of outstanding securities, the price and trading volume trend, the transaction situation before and after, the economic rationality and fairness of the transaction, whether the transaction is disguised or false, the degree of market intervention rate, the continuous closing management, etc. (see, e.g., Supreme Court Decisions 2004Do1164, Nov. 10, 2005; 2009Do675, Apr. 9, 2009).

B. The lower court acknowledged the following facts by taking account of the following facts. ① the number of shares purchased by Nonindicted Co. 1 through a merger and acquisition of Nonindicted Co. 1 (hereinafter “Nonindicted Co. 1”) was 0, 70, and the Defendant Co. 1 (hereinafter “Defendant Co. 2”)’s average trading volume from 0, 700 to 0, 70, 100, 200, 300, 100, 200, 300, 100, 100, 300,000,000,000,000,0000,000,000,000,000,000,0000,000,000,000,000,000,000,000,000,000,000).

In full view of the aforementioned various circumstances, the lower court determined to the effect that Defendant 1, Defendant 2, and Co-Defendant 3 of the first instance trial were aware of, or was sufficiently aware of the purpose of inducing the sale and purchase of, Nonindicted Company 1’s stock transaction, as the stock transaction was conducted between April 30, 2007 and August 31, 2007 (hereinafter “instant stock price manipulation period”).

In light of the above legal principles and the evidence duly admitted by the court below, the above judgment of the court below is just and acceptable. Contrary to the grounds of appeal, there are no errors in the misapprehension of legal principles as to the purpose of stock price manipulation under Article 188-4 (1) and (2) of the former Securities and Exchange Act, or in violation of the principle of free evaluation of evidence against logical

2. As to the misapprehension of legal principles as to co-principals

A. In relation to co-offenders who jointly process two or more persons in a crime, the conspiracy does not require any legal punishment, but is only a combination of intent to realize the crime through a joint processing of a crime committed by two or more persons. Although there was no process of the whole conspiracy, if there was a combination of intent to conduct the crime in order or impliedly, the conspiracy is established. Even if there was no direct participation in the conduct, even if there was no direct participation in the conduct, the conspiracy is criminal liability for the act of another person as a co-principal. Such conspiracy is recognized by circumstantial facts and empirical rules even if there was no direct evidence (see, e.g., Supreme Court Decisions 2004Do5494, Dec. 24, 2004; 2010Do10739, Jan. 27, 2012; 2010Do3979, Apr. 19, 196).

B. The lower court determined that Defendant 1, Defendant 2, and Defendant 3 conspired to conduct the instant market price manipulation with the intention to mislead or induce the instant market price manipulation with the intention to mislead, or inducing the instant market price manipulation, by taking into account various circumstances as indicated in its reasoning, including Defendant 2’s statements and the instant market price manipulation in accordance with the orders of Defendant 1, who is the president of the ○○ Group. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted by the lower court, the lower court is justifiable. In so doing, the lower court did not err by misapprehending the legal doctrine on the joint principal offense, or by exceeding the bounds of the principle of free evaluation of evidence, contrary to logical and empirical rules, contrary to what is alleged in the ground of appeal.

3. As to the misapprehension of legal principles as to the disguised trade

A. Part of the transaction indicated in No. 24 and 30 and No. 40 and 51 of the crime sight table in the judgment of the court of first instance

(1) Pursuant to Article 188-4(1)1 and 2 of the former Securities and Exchange Act, a competitive act that stipulated one of market price manipulation as one of market price manipulation means the act of selling (sale) securities at the same time as one of one’s own purchases) after the other person conspired in advance with the other person to sell (sale) the securities at the same price. Here, “other person” means a person to whom the profits and losses from the sale of securities are otherwise attributed. The act of the same person to make another person sell the securities at the same price between each account for the purpose of creating a misunderstanding that the same person becomes aware of the fact that the transaction was conducted with the delegation of the management of each account from the person to whom the profits and losses accrued, or causing other person to make

According to the reasoning of the judgment below and the evidence duly admitted by the court below, ① The transactions mentioned in Nos. 24 through 30 and No. 40 through 51 in the annexed crime list of the judgment of the court of first instance cited by the court below are transactions between the accounts in the name of Non-Indicted 2 and Non-Indicted 4, an affiliate to the ○○ Group (hereinafter “Non-Indicted 4”) managed by Non-Indicted 3, and the accounts in the name of Non-Indicted 3, an affiliate to the ○○○ Group. ② Co-Indicted 3 purchased and managed Non-Indicted 1’s shares with the funds of Defendant 4 or Defendant 3, and Non-Indicted 4 acquired and managed the shares in the name of Non-Indicted 1’s name under the order of Defendant 1, and acquired and sold the shares in the above account in the name of Non-Indicted 2 and 3’s name until the purchase price was determined, and the above shares were traded with the non-Indicted 1’s own shares and sold the shares in the above account.

In light of the above legal principles, each of the above accounts was made between the borrowed name account in the name of Nonindicted 2 and Nonindicted 3 and the name of Nonindicted Company 4, all of which are managed by Nonindicted 31 in the first instance trial, and the purchase price of the shares was determined by Co-Defendant 3 in the first instance trial. However, since the profit and loss from the transaction was made between the other party to which the other party to which the profit and loss from the transaction belongs differently, it constitutes a trade of conspiracy under Article 188-4 (1) 1 and 2

The court below held otherwise that each of the above transactions constitutes the fictitious trading under Article 188-4 (1) 3 of the former Securities and Exchange Act. However, the most trade is the same case where the purchase account and the sale account are identical, or even if the accounts are different, it is erroneous for the court below to regard each of the above transactions as the fictitious trading, not the collusion trading. However, the most trade and the disguised trading are all acts stipulated in Article 188-4 (1) of the former Securities and Exchange Act, which are committed as part of the price manipulation, and there is a difference in the form of the act depending on whether the person in charge of profit and loss arising from the purchase and sale of securities belongs to the same person. The above acts are committed continuously and repeatedly with a single and continuous criminal act for the purpose of stock price manipulation, and the legal interest protected by the law is identical to the social legal interest of securing the fairness and smooth circulation of the securities trading in the securities market, etc., which constitutes the crime of violating Article 188-4 of the former Securities and Exchange Act (see, e.g., Supreme Court Decision 20012Do178200.

In light of this point, even if the court below erred in deeming the collusion as the most trade, it was merely an erroneous understanding of the degree of conduct, and the conclusion that the court below convicted all of the price manipulations of this case during the total period of price manipulation as the comprehensive crime of violating the prohibition of unfair trade under Article 188-4 of the former Securities and Exchange Act, is justifiable, and therefore, the above error does not affect the judgment.

B. The transaction details Nos. 1, 2, 6 and 12, and 52 and 159

The lower court, based on its reasoning, determined that the transactions listed in the [Attachment Nos. 1 and 2] were the most trade between the accounts managed by Defendant 2, and that the transactions listed in the annexed Nos. 6 and 12, and 52 and 159 were the joint trade between the accounts managed by Defendant 2 and the accounts managed by Co-Defendant 3 of the first instance trial. The allegation in the grounds of appeal in this part is justified in the lower court’s fact-finding in light of the purport that each of the above transactions was actually conducted or was conducted without a conspiracy, or the records, and it is not recognized that there was any illegality exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

4. As to the misapprehension of legal principle as to profits gained from the violation

A. The misapprehension of the legal principle as to causation when calculating the profit gained from the violation

(1) Articles 207-2 and 214 of the former Securities and Exchange Act provide that the statutory penalty for imprisonment shall be aggravated and the upper limit of fines shall also be increased when the “profit accrued from a violation”, such as market price manipulation, exceeds a certain amount. Furthermore, Articles 8 and 10 of the former Act on the Regulation and Punishment of Criminal Proceeds Concealment (amended by Act No. 8719, Dec. 21, 2007) that was enforced at the time of the end of the pertinent market price manipulation, which were property generated from a criminal act, such as market price manipulation under the former Securities and Exchange Act, shall be confiscated and collected. In light of the legal system as seen above, the “profit accrued from the violation” refers to the calculation of the difference between the total income generated from the violation and the total expenses incurred from the violation, among the profits generated from the violation, and the calculation of the difference between the total income generated from the violation and the total expenses incurred from the stock price increase in the market, which can be deemed to have been made separately by the prosecutor of the 20-party share price increase or the share price increase.

The court below held that the causal relationship required in calculating the "profit accrued from the violation" under Articles 207-2 and 214 of the former Securities and Exchange Act does not necessarily mean that there is a direct causal relationship with the act of violation, and if it falls under the profit accrued from the transaction related to the act of violation, it shall be deemed that the act of violation constitutes a criminal liability for all profits accrued from the act of violation without deducting the causal relationship. Accordingly, the court below acknowledged the difference between the average unit price of purchase and sale based on the specific transaction cost for the period of the pertinent market price manipulation and the average sale price of the profits accrued from the act of violation (which is less than the average purchase price and sale price) and the profits accrued from the act of violation. Accordingly, the defendants' assertion that the share price increase during the pertinent market price manipulation period includes not only the stock price increase but also other factors such as normal share price increase, and therefore, the profits accrued from the act of violation should be calculated by multiplying the remaining difference by the average sale price (which is less than the average sale price and sale price estimate).

Fidelity, however, in light of the legal principles as seen earlier, we cannot agree with the lower court’s above determination. If the share price increase in Nonindicted Company 1’s shares during the pertinent market price manipulation period includes the share price increase due to other factors than the share price increase due to the instant market price manipulation, the part shall be deducted from the profits accrued from the act of violation.

In particular, the period from April 30, 2007 to August 31, 2007, which was the market price manipulation period, was very large for the domestic stock market. At the time, the domestic comprehensive stock price index (KOSPI) was 1542.24 around April 30, 2007, which was the first seal of the above period, and the last seal was 1542.24 around August 31, 2007, which was 1873.42. At the same time, the stock price index of the steel metal industry, which was the same type of business listed on the securities market, was 3 times increased. At that time, the defendants' average stock price ratio according to the stock price manipulation in the instant case, since the average stock price ratio was 11.87% and average stock price ratio was 4.41%, and it was very unfair to view the entire stock price increase as the stock price manipulation in the instant case during the above period as the profits of the Defendants during that period were submitted.

The lower court determined otherwise by misapprehending the legal doctrine on the interpretation and application of “profit derived from a violation” under Articles 207-2 and 214 of the former Securities and Exchange Act, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

B. Meritorious of legal principles as to the subject of the benefit accrued from the violation

(1) According to Articles 207-2 and 214 of the former Securities and Exchange Act, “profit accrued from a violation” means, in principle, the profit accrued from the violation, and the profit accrued to a third party who did not participate in the crime shall not be included. However, where a corporation’s representative is a corporate entity, the profit accrued from the violation is the corporation’s profit and the actual offender’s profit is also included in the profit accrued from the violation (see Supreme Court Decision 2011Do12041, Dec. 22, 2011).

Meanwhile, Article 215 of the former Securities and Exchange Act provides that "where a representative of a corporation commits a violation under Articles 207-2 through 212 in connection with the business of the corporation, not only shall the violator be punished, but also the corporation shall be punished by a fine under each relevant Article." It is reasonable to interpret "the representative of the corporation" as including a person who actually represents the corporation in the course of operating the corporation regardless of its name (see Supreme Court Decision 96Do1703, Jun. 13, 1997).

According to the reasoning of the judgment below and the evidence duly adopted by the court below, Defendant 1 was serving as the president of ○○ Group at the time of the instant market price manipulation, while serving as the president of ○○ Group, Defendant 4, and Nonindicted Company 4, and was in the position of the largest shareholder of Defendant 3, the holding company, and Defendant 3 was in the position of the largest shareholder of Defendant 4 and Nonindicted Company 4. Defendant 1 was in the position of the largest shareholder of Defendant 3, Defendant 1, at the time of the instant market price manipulation, made a decision independently on the major managerial affairs of Defendant 3, Defendant 4, and Nonindicted Company 4, and instructed these companies to conduct the instant market price manipulation.

In light of the above legal principles, Defendant 1 may be deemed as the actual representative of Defendant 3’s representative director, Defendant 4, and Nonindicted Company 4, and even if Defendant 1, who is in such position, conspired with Defendant 2 and Defendant 3 in collusion with Defendant 2 and Defendant 4, considerable of the profits accrued from the instant market price manipulation, is attributed to Defendant 3, Defendant 4, and Nonindicted Company 4, such profits can be deemed as the profits accrued from Defendant 1. Furthermore, this can be deemed as the profits accrued from Defendant 2, who is in joint principal relation with Defendant 1.

Although there are some deficiencies in the reasoning of the court below, it is just to conclude that the profit accrued to Defendant 3, Defendant 4, and Nonindicted Company 4 can be seen as the profit accrued to Defendant 1 and Defendant 2. Contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles on the interpretation and application of the "profit accrued from the violation" under Articles 207-2 and 214 of the former Securities and Exchange Act or by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules.

C. Meritorious of legal principles as to the appraisal of unrealized profits

(1) In light of the aforementioned legal principles, the lower court determined that the Plaintiff, etc., was aware of the facts charged with the violation of Article 207-2 of the former Securities and Exchange Act and Article 214 of the former Securities and Exchange Act (amended by Presidential Decree No. 20135, Dec. 12, 2003; Presidential Decree No. 20140, Jan. 27, 2012; Presidential Decree No. 201358, Feb. 28, 2011; Presidential Decree No. 201358, Feb. 23, 2011; Presidential Decree No. 20134, Jan. 27, 2012; Presidential Decree No. 20130, Jan. 28, 2012; Presidential Decree No. 20130, Feb. 3, 2015; Presidential Decree No. 20130, Feb. 3, 2013>

D. In light of the above legal principles, the lower court was justifiable to view the base point of time for assessing the stocks of Nonindicted Company 1, which was held in calculating the unrealized profits arising from the instant market price manipulation, as the time of the termination of the instant market price manipulation, and to not deduct the trading cost anticipated in the future

However, as seen earlier, the lower court did not consider not only the realization profit arising from the instant market price manipulation but also the unrealized profit, but also applied only the closing price of Nonindicted Company 1, which was held at the time of the completion of the instant market price manipulation, and calculated unrealized profit. As such, the lower court erred by misapprehending the legal doctrine on the interpretation and application of “the profit accrued from the violation” as stipulated in Articles 207-2 and 214 of the former Securities and Exchange Act, and failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal on this part is with merit within the scope of the aforementioned recognition.

5. As to the misapprehension of legal principles as to the principle of priority in new law

A. According to Articles 1(2) and 8 of the Criminal Act, in principle, when a punishment is more minor than that of the former Act due to the amendment of the Act after the crime, the new Act is in accordance with the new Act, but it is also allowed to exclude the application of such new Act by providing for the application of the previous penal provisions to crimes prior to the enforcement of the Act amended by the Addenda thereto, while revising the punishment of the previous penal provisions less somewhat than that of the former (see, e.g., Supreme Court Decision 2011Do1303, Jul. 14, 201).

Although the former Securities and Exchange Act was promulgated by Act No. 8635 of Aug. 3, 2007 and repealed by Article 2 of the Addenda of the Financial Investment Services and Capital Markets Act (hereinafter “Capital Markets Act”), Article 41 of the Addenda of the Capital Markets Act (hereinafter “Capital Markets Act”) provides that the application of penal provisions and administrative fines for violations of the former Securities and Exchange Act prior to the enforcement of this Act under paragraph (1) shall be governed by the former provisions in the application of penal provisions and administrative fines for such violations.

Therefore, the former Securities and Exchange Act shall apply to the pertinent market price manipulation prior to the enforcement of the Capital Markets Act, regardless of whether the punishment for such manipulation is somewhat less prescribed in the Capital Markets Act.

B. Furthermore, in preparation for the penal provisions of the former Securities and Exchange Act and the Capital Markets Act with respect to a crime of which the profit accrued or the loss avoided by market price manipulation amounting to more than 500 million won, it cannot be deemed that the Capital Markets Act provides a more minor punishment than the former Securities and Exchange Act

In other words, considering the provisions of Article 443(1) and (2) of the Capital Markets Act and Article 447(1) and (2) of the same Act, the purpose of Article 443(2) of the same Act, which provides aggravated punishment, is to clarify the meaning of imprisonment with prison labor and a fine imposed in accordance with the classification of each of the following subparagraphs among imprisonment with prison labor and a fine imposed in a multiple-choice format, and it cannot be interpreted that Article 443(1) of the same Act provides that the purpose of maintaining a multiple-choice form of punishment is not to maintain a multiple-choice type of punishment. Therefore, it cannot be deemed that Article 443(2) of the same Act provides more minor punishment by adding a fine to a multiple-choice form, contrary to Article 207-2(2) of the former Securities and Exchange Act.

C. Therefore, the court below is just in holding that Article 207-2 (2) of the former Securities and Exchange Act shall apply to a crime of which the profit derived from market price manipulation prior to the enforcement of the Capital Markets Act is more than KRW 500 million, and there is no error of law by misapprehending the principle of good priority or the legal principles on interpretation and application of Article 443 (2) of the Capital Markets Act

6. As to the violation of the principle of no accusation

A. Violation of the principle of non-fixed interest in stock price manipulation purpose

If there is no concern about substantial disadvantage to the defendant's exercise of his right of defense, it does not violate the principle of no accusation even if the court recognizes some other facts without the amendment process of indictment or differs applicable provisions of Acts (see Supreme Court Decision 90Do153 delivered on November 13, 190, etc.).

According to the records, the facts charged in this part of the facts charged include only the contents of the act that “the securities transaction was made with a mistake of being aware of, or with a fluctuation in, the market price,” with respect to the most recent market price manipulation in the instant case, and there is no explicit statement as to “the purpose of disguised transactions” under the legal provisions.

However, in light of the provisions of this part of the facts charged and Article 188-4 of the former Securities and Exchange Act as stated in the indictment, Defendant 1 and Defendant 2, etc., can easily be seen that the above act of conducting the fictitious and fictitious transactions was indicted with the intent to mislead others to make a false judgment as to the trading transaction or causing them to make a false judgment. Thus, this part of the facts charged does not necessarily mean that the facts charged are not specified solely on the grounds that the above act was omitted in the facts charged. In addition, the Defendants have been repeatedly disputed since the first instance trial to the original trial on whether there was such purpose, and even if the court recognizes the fact that the trading was conducted for the same purpose without the amendment of the indictment, there is no concern about the substantial disadvantage in exercising the Defendants’ right to defense.

Therefore, the court below did not err in the misapprehension of legal principles as to the specification of facts charged or the principle of no accusation, as otherwise alleged in the ground of appeal, in finding that Defendant 1, Defendant 2, etc., without any changes in the indictment procedure, had pretended to have been engaged in the

B. Violation of the principle of non-defluence regarding the most trade

The argument in this part of the grounds of appeal is that the transactions mentioned in the annexed Nos. 24 and 30, and Nos. 40 and 51 were prosecuted by a conspiracy, but the court below recognized it as the most fictitious transaction without any amendment process. It is the purport that this is in violation of the principle of non-de

However, as seen earlier, each of the above transactions constitutes a negotiated trade rather than a disguised trade, and even if the lower court erred in determining that the collusion, which is a part of the crimes constituting a comprehensive crime, was the fictitious trade, such mistake does not constitute an error of law that affected the conclusion of the judgment. The allegation in the grounds of appeal in this part is not acceptable.

7. As to Defendant 2’s ground of appeal on the grounds of unfair sentencing

According to Article 383 subparag. 4 of the Criminal Procedure Act, an appeal on the grounds of unfair sentencing may be filed only in cases where death penalty, life imprisonment, or imprisonment with or without prison labor for not less than ten years is sentenced. In this case where Defendant 2 was sentenced to a more minor sentence, the argument that the amount of punishment is unreasonable is not legitimate grounds for appeal.

8. Scope of reversal

For the foregoing reason, among the judgment below, the part on the violation of the former Securities and Exchange Act due to the manipulation of market price with Defendant 1, Defendant 3, and Defendant 4 and the part on Defendant 2 should be reversed. Since the above part on the reversal with respect to Defendant 1, Defendant 3, and Defendant 4 are in concurrent crimes under the former part of Article 37 of the Criminal Act with respect to the remaining convictions against the above Defendants, it shall

9. Conclusion

Therefore, among the judgment below, the guilty part against Defendant 1 and the remaining parts against the Defendants are all reversed, and this part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)