[1] The case holding that in a case where the defendant et al. opened a private futures site and recruited its members, and arranged them to conduct virtual futures trading with the Korea Exchange by using securities account with which the customer margins are deposited, and deducted certain amount of commission, and the remaining amount of losses of its members after having them conduct virtual futures trading in connection with the exchange 200 index, and Defendant et al. acquired them, the act of mediating actual futures trading on the above site constitutes a crime of violation of Article 44 subparagraph 1 and Article 11 of the Financial Investment Services and Capital Markets Act by an unmanned person who acts as a broker for virtual futures trading under Articles 44 subparagraph 27 and 373 of the same Act, and the act of causing virtual futures trading constitutes a crime of violation of the same Act by opening and operating an unauthorized financial investment instruments market under Articles 44 subparagraph 27 and 373 of the same Act, and each crime constitutes a substantive concurrent crime relationship

[2] Whether it is subject to confiscation or collection, or whether it is necessary to prove strict proof of the amount of collection (negative)

[1] Articles 30 and 37 of the Criminal Act; Articles 6(1) and (2) and (3), 11, 373, and 44 subparag. 1 and 27 of the Financial Investment Services and Capital Markets Act / [2] Article 48 of the Criminal Act; Articles 8(1) and 10(1) of the Act on Regulation and Punishment of Criminal Proceeds Concealment; Article 308 of the Criminal Procedure Act

[2] Supreme Court Decision 91Do3346 delivered on June 22, 1993 (Gong1993Ha, 2183) Supreme Court Decision 2006Do9314 Delivered on March 15, 2007

Defendant 1 and four others

Defendant 1 and Prosecutor

Attorney Song-tae et al.

Seoul Central District Court Decision 2014No3598 Decided January 9, 2015

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined.

1. As to the Prosecutor’s Grounds of Appeal

The Financial Investment Services and Capital Markets Act (hereinafter referred to as the "Capital Markets Act") provides that no person may engage in financial investment business (excluding investment advisory business and discretionary investment business) without authorization therefor under this Act (Article 11); and that no person shall establish or operate a financial investment instruments market without authorization therefor (Article 373); that a person who engages in financial investment business without authorization therefor in violation of Article 11 (Article 44 subparagraph 1); that a person who establishes or operates a financial investment instruments market without permission therefor (Article 44 subparagraph 27 of Article 44); or that a person who violates Article 373 (Article 4) without permission from an Exchange in violation of Article 373 (Article 4) shall be punished by imprisonment with prison labor for not more than five years; or that a fine not exceeding 200 million won is imposed on an investment trading business, investment brokerage business, collective investment business, investment advisory business, discretionary investment business, discretionary investment business; that person offers or accepts an offer for securities on his/her own account; that person shall buy or sell securities; that person's offer or accept an offer under no matter the name.

According to the reasoning of the judgment below, in light of the facts found in its reasoning, the court below determined that Defendant 1's transaction at the private futures trading site (hereinafter "the private futures trading site of this case") established with Nonindicted Party 1 and Nonindicted Party 2, etc. (hereinafter "Defendant et al.") constitutes financial investment instruments prescribed by the Financial Investment Services and Capital Markets Act; however, Defendant et al. did not allow its members to actually conduct futures trading at the Korea Exchange while establishing and operating the private futures site of this case, but merely provided a service through which it is possible for its members to make an investment on the basis of the futures index and exchanged according to their transaction results, since it cannot be deemed that Defendant et al. directly conducted an act of selling and purchasing with its members, it did not constitute a violation of the Financial Investment Services and Capital Markets Act under Articles 44 subparagraph 1 and 11 of the same Act.

However, we cannot accept the above judgment of the court below for the following reasons.

According to the reasoning of the judgment below and the records, the defendant et al. opened a securities account in the Sojin Investment Futures with a certain amount of consignment guarantee money in order to conduct futures trading, and opened the private site of this case after depositing the consignment guarantee money. The defendant et al. recruited members to trade the "OS20 gift" by using it. The defendant et al. deposited cash in the account opened on the website of the private site of this case and the so-called Home Trading System (hereinafter "○○○○"), which has been developed by its own, with a certain amount of consignment guarantee money, in order to conduct futures trading as exchange-traded derivatives. The defendant et al. accumulated electronic currency for trading converted into 1:1 ratio. The defendant et al. stored the money for trading converted into 30 won and actual futures trading with the Korea Exchange using the securities account of the above members; the remaining money should be conducted futures trading in connection with the 200 vis20 index of the Exchange; and the remaining money should be paid by 200 won and 4.5 billion won in electronic currency from 206.

Examining the above facts in light of the aforementioned provisions, Defendant, etc.’s act of mediating to sell and purchase securities accounts with which customer margins are deposited to its members, and receiving commission fees at a certain ratio, and causing final profits and losses therefrom to accrue to its members shall be deemed to run an “investment brokerage business” engaging in the business of brokering the sale and purchase of financial investment instruments on another’s account without obtaining authorization for the financial investment business. The act of having its members carry on virtual futures trading in connection with the 200 index, which is exchange-traded derivatives, at the private site of this case, with the OSP 200 index, and clearing profits and losses with its members shall be deemed to have established and operated a financial investment instruments market without obtaining permission for the exchange.

Therefore, Defendant 1’s act of mediating actual futures trading on the private site of this case constitutes a crime of aiding and abetting each of the above crimes, and the crime of aiding and abetting each of the above crimes is established as a crime of violation of the Capital Markets Act by the operation of an unmanned financial investment business under Articles 44 subparag. 1 and 11 of the Capital Markets Act, and the act of conducting virtual futures trading is established as a crime of violation of the Capital Markets Act by the establishment and operation of an unauthorized financial investment instrument market under Articles 44 subparag. 27 and 373 of the Capital Markets Act. Defendant 2, Defendant 3, Defendant 4, and Defendant 5 recommended the private site to its members. The crime of aiding and abetting each of the above crimes is established, and the crime of violation of the Capital Markets Act is in conflict of legal interests and interests and interests.

Nevertheless, the lower court erred by misapprehending the facts charged in the instant case as a violation of the Capital Markets Act by the operation of the investment trading business, and exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules with respect to the operation method of the private site, thereby not guilty of each of the above crimes. The allegation contained in the grounds of appeal on this point is with merit

2. As to Defendant 1’s ground of appeal

A. The assertion on the opening of gambling space

According to the reasoning of the judgment below, although there is no doubt as to whether the establishment of gambling space was applied to the portion of brokerage of actual futures trading at the private site of this case, in light of the records, it is reasonable to view that the establishment of gambling space is recognized only for the portion caused by virtual futures trading, and therefore, the ground of appeal in this part is without merit.

B. The assertion concerning the calculation of the surcharge

It does not require strict certification (see Supreme Court Decision 91Do3346 delivered on June 22, 1993).

In light of the records, the court below recognized the profits that the defendant distributed to non-indicted 5, who was the developer of ○○○○ program as KRW 1,078,653,718 based on the defendant's statement recorded in the suspect examination protocol of investigation cooperation prepared by the prosecutor attached to the trial records and the evidence submitted, and excluded them from the amount of additional collection is justifiable. Contrary to the allegations in the grounds of appeal, there is no violation of the bounds of the principle of free evaluation of evidence

C. The remaining grounds of appeal are asserted

Since a final appeal is a follow-up trial on the judgment of the appellate court, matters not subject to a review in the appellate court are not different from the scope of the judgment of the court of final appeal, so it cannot be deemed as the grounds for final appeal for reasons other than those which the defendant did not assert as the grounds for final appeal in the appellate court or are subject to a review by the appellate court ex officio (see Supreme Court Decision 2006Do2104, Jun. 30

According to the records, the defendant and his defense counsel appealed against the judgment of the court of first instance, and did not assert misconception of facts or misapprehension of legal principles as to the violation of the Act on the Regulation and Punishment of Criminal Proceeds Concealment among the facts charged in this case, and each violation of the Capital Markets Act, and the court below did not consider it as an object of judgment ex officio. Therefore, this part of the grounds for appeal by the defendant are asserted only in the final appeal,

In addition, according to Article 383 subparag. 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for more than ten years is imposed, an appeal on the grounds of unfair sentencing is allowed. Thus, in this case where a more minor sentence is imposed on the defendant, the argument on unfair sentencing is

3. Conclusion

Of the judgment of the court below, the part concerning the violation of the Capital Markets Act and aiding and abetting the operation of financial investment business should be reversed for the reasons mentioned above. Since this part and the part of the judgment of the court below against the defendants in the concurrent crime relation under the former part of Article 37 of the Criminal Act, the whole judgment below is reversed, and 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 Yong-deok (Presiding Justice)