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The judgment of the court below is reversed.
Defendant
A Imprisonment for one year, and each of the defendants B shall be punished by imprisonment for ten months.
(b).
Reasons
1. Summary of grounds for appeal;
A. Article 443(1) of the Financial Investment Services and Capital Markets Act (hereinafter “Capital Markets Act”) is amended after the Defendants committed an offense, and thus, the former Act is applied to the Defendants. However, the lower court erred by misapprehending the legal doctrine in applying more severe new laws.
B. The sentence imposed by the court below (Defendant A: imprisonment of one year, two years of suspended execution, two hours of community service, 80 hours of collection, 199,39,390,425 won in addition to collection B, Defendant B: imprisonment of ten months, suspended execution of two years, community service, 80 hours in addition to collection, and 199,390,425 won in addition to collection) is too unreasonable.
2. Article 1 of the Criminal Act provides that the establishment and punishment of a crime shall be governed by the Act at the time of the act, and that when the punishment is more severe than the former Act due to the change of the Act after the crime, the new Act shall apply. Article 50(3) of the Criminal Act provides that the same type of punishment is more severe than the longer maximum term and larger maximum amount, and that when the maximum term or amount is equal, it shall be more severe than the longer minimum term or larger.
Article 443(1) of the former Capital Markets Act (amended by Act No. 11845, May 28, 2013) (amended by Act No. 11845, May 28, 2013) provides that "any of the following persons shall be punished by imprisonment with labor for not more than ten years or by a fine not exceeding 500 million won: Provided, That if the amount equivalent to three times the profit accrued or loss avoided by the violation exceeds five hundred million won, the person who falls under any of the following subparagraphs shall be punished by a fine not exceeding the amount equivalent to three times the profit accrued or loss avoided by the violation, and Article 443(1) of the said Act as amended by Act No. 11845, May 28, 2013 shall be punished by imprisonment with labor for not more than ten years or by a fine not exceeding one to three times the profit accrued or loss avoided by the violation:
However, the profit gained or the loss avoided by the violation.