The judgment below

The part of the defendant (including the part not guilty of the reason) shall be reversed.

Defendant shall be punished by imprisonment for a period of one and half years.

1. Summary of grounds for appeal;

A. Although the lower court sentenced the Defendant to the penalty surcharge of KRW 246,382,026 on the charge of operating the instant market price, it is difficult to recognize the Defendant’s relation with the person who caused illegal profits equivalent to the amount of the penalty surcharge.

As above, the court below erred by misapprehending the legal principles or misunderstanding the fact that the court below sentenced the collection.

B. The punishment sentenced by the lower court (one year and six months of imprisonment) is too unreasonable.

2. Determination on the illegality of collection

A. The term “profit accrued from a violation” under the proviso of Article 443(1) and proviso of Article 443(2) of the former Financial Investment Services and Capital Markets Act (amended by Act No. 11845, May 28, 2013; hereinafter “former Capital Market Act”) refers to the profit accrued from a transaction related to the violation, which is recognized as having relation to the risk of the violation.

In ordinary cases, profits related to the person can be calculated by calculating the difference from the gross income generated from a transaction related to an offense after deducting the total expenses incurred in trading. However, in a case where there are circumstances to deem it unfair to calculate the amount of profits accrued from the offense in a specific case due to a third party unrelated to the person who committed the offense, such as the share price increase caused by normal factors in the stock market or the share price increase caused by a third party unrelated to the person who committed the offense, the amount of profits accrued from the offense should be separately calculated, and the prosecutor bears the burden of proving the amount (see, e.g., Supreme Court Decision 201Do15056, Jul. 11, 2013). Furthermore, Articles 2 subparag. 1 and 2(a) and 8(1)1 and 10(1) of the former Act on the Regulation and Punishment, etc. of Concealment of Criminal Proceeds.