(영문) 서울고등법원 2010. 8. 6. 선고 2010노565 판결

When the defendant fails to pay the above fine, the defendant shall be confined in the old house for the period calculated by converting the amount of KRW 10 million into one day.

except that the execution of the above imprisonment shall be suspended for four years from the date this judgment becomes final and conclusive.

Of the facts charged in this case, the prosecution against the evasion of gift tax due to capital increase with consideration on December 26, 2003 is dismissed.

2. All appeals filed by the prosecutor on the violation of the Securities and Exchange Act due to fraudulent illegal transactions, the violation of the Securities and Exchange Act due to market price manipulation on September 7, 2006, and the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, are dismissed.

Reasons

1. Summary of grounds for appeal;

A. Defendant

(1) misunderstanding of facts and misapprehension of legal principles

(A) The defendant did not have the purpose of inducing the transaction.

The lower court erred by misapprehending the legal doctrine on the following grounds: (a) the Defendant purchased shares in a large quantity; (b) the price increase due to a natural demand and supply in the stock market; (c) there was no intention to artificially increase the share price; (d) the dialogue between the employees of the company that purchased shares for the Defendant’s side and its employees was expected to naturally increase the share price; and (e) the Defendant did not discuss the artificial price manipulation; and (e) the Defendant purchased shares at an expensive purchase order, the number of purchase orders, the low-priced defense orders, and the closed-end purchase orders. However, the lower court did not err by misapprehending the legal doctrine on the purchase of shares from 100 to 280 on the ground that the high-priced purchase orders or closed-end purchase orders were merely the purchase orders inevitably used for purchasing shares at a large quantity of shares in the stock market; and (e) the purchase orders were cancelled after the change of market price; and (e) the purchase orders did not constitute an order for purchasing shares from 200 to 180 on the market price of 20.6.808.

(B) The Defendant did not participate in market price manipulation.

In light of the fact that the Defendant, as an operator of a KOSDAQ-listed corporation, has an interest in the company’s stock price as a matter of course, and that there was no need to make additional contributions due to stock price decline, the Defendant did not have any specific motive to make the stock price manipulation for the purpose of raising the stock price, and that the Defendant did not have been able to gain profits therefrom, it cannot be deemed that the Defendant actively participated in the stock price manipulation. Therefore, the lower court recognized the Defendant as a co-principal of the crime of price manipulation from October 9, 2006 to October 26, 2006, and as a co-principal of the crime of price manipulation from July 3, 2008 to November 28, 2008.

(2) The assertion of unreasonable sentencing

In light of the fact that it is difficult to see that the defendant obtained profits from the crime of manipulation of market price approved by the court below or suffered unexpected damages to general investors, that there was an inevitable reason to make contributions to the 11 billion won community and to prevent the fluctuation of the share price due to the financial crisis, and that the defendant has contributed significantly to the development of culture and arts while contributing a lot of property to society, it is unfair that the punishment of imprisonment with prison labor for 8 months and the suspension of execution for 2 years, which the court below sentenced to the defendant, is too unreasonable.

(b) Prosecutors;

(1) misunderstanding of facts and misunderstanding of legal principles as to the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Act on the Aggravated Punishment, etc. of Specific Crimes”)

(A) Claim as to acceptance of 150,000 bills

In light of the fact that Nonindicted 1 made a statement that a tax investigation was made on the grounds that the Defendant provided money and valuables to the Defendant, Nonindicted 1 made a direct tax investigation into the Defendant, and Nonindicted 1 made a solicitation on several occasions before and after the issuance of a proposal 150,000 won, Nonindicted 1 made the same solicitation. The Defendant returned to the Republic of Korea for 12 days during the Vietnam Olympic period, and requested Nonindicted 4, who is the Commissioner of the National Tax Service, to conduct a tax investigation on Nonindicted 1. Nonindicted 1. Nonindicted 1 made a donation of KRW 30,000 in the name of Nonindicted Company 2, as the vice-chairperson of the Korea Reding Association immediately before the issuance of the said proposal to the Defendant. Nonindicted 2 and the Korea Redling Association, as the above 30,000 won, processed the above 150,000 won as an official donation and arranged the details of the disbursement, in consideration of the fact that the Defendant did not receive or dispose of the use of the official donation within the said 150,0,0,0,00000,0000,00,000,00,000.

(B) Claim on the issue of the request for loss disposal

The defendant requested the non-indicted 5 in charge of the management of his property with the non-indicted 1 and his non-indicted 5 to dispose of losses on the shares of the non-indicted 6 corporation on two occasions over January 2008 and May 2008, and refused it. After that, in the course of the investigation conducted by the National Tax Service by the non-indicted 1 on the non-indicted 2 corporation operated by the non-indicted 1 and the prosecutor's complaint and detention against the non-indicted 1, the defendant stated that he would make the non-indicted 4, who is the Commissioner of the National Tax Service, would make a solicitation for a tax investigation, or make efforts to suspend the execution or amnesty after the non-indicted 1's detention, and then demand the disposition of losses on the shares of the non-indicted 6 corporation against the non-indicted 5 on January 2009. Thus, the defendant's act of demanding that the non-indicted 6 corporation not exercise his right as a shareholder by means of waiver of the recovery of investment amount, and thus, it is erroneous in the misapprehension

(2) misunderstanding of facts and misapprehension of legal principles as to violation of special law (tax)

As to the facts charged in this case involving the Defendant’s donation of borrowed-name shares around September 2003, evasion of gift tax from capital increase by issuing new shares on December 26, 2003, evasion of gift tax from bypass listing through a merger around July 2006, and evasion of gift tax from bypass listing through a merger around July 2006, and violation of special family law from the transfer of borrowed-name shares in 2006 (tax), the lower court acquitted the Defendant of the part and determined that the part of the charges was dismissed. However, the lower court erred by misapprehending the facts or misapprehending the legal doctrine for the following reasons.

(A) On September 2003, the prosecutor prosecuted the Defendant as an inclusive crime of violating the Special Act (tax) the following facts: (a) around December 26, 2003, the Defendant’s donation of borrowed-name shares; (b) the evasion of gift tax following the bypass listing on December 26, 2003; and (c) the evasion of capital gains tax following the transfer of borrowed-name shares in July 2006. However, the lower court found the Defendant guilty of the remainder of the tax evasion on the grounds that there is no criminal intent on the evasion of gift tax following the transfer of borrowed-name shares in 2006, among the facts charged; and (b) on the grounds that there is no criminal intent on the evasion of gift tax following the transfer of borrowed-name shares in 2006. Ultimately, the lower court did not err in its judgment on September 26, 2003, since it did not err in its judgment on the violation of the Act.

(B) The provisions pertaining to the donation of profits, such as listing following the merger under Article 41-5 of the Inheritance Tax and Gift Tax Act (hereinafter “Gift”) do not stipulate a type of the act of evading new gift tax, but rather stipulate the method of calculating the value of donated property in cases where the value of donated property increases due to a bypass listing through the merger. As long as there is a criminal intent as to the evasion of gift tax due to a bypass listing through the merger on or around September 2003, there is no need to establish a separate crime of evading gift tax due to a bypass listing through the merger on or around July 2006. The lower judgment otherwise stated in the lower judgment is unlawful.

(C) Even if there is a need to separately exist the intent of evading gift tax in order to establish a constructive gift tax evasion through a bypass listing through a merger around July 2006, as long as the Defendant, around September 2003, donated stocks to his children in mind at the time of the act of evading gift tax while making a bypass listing through a merger between Nonindicted Co. 7 and Nonindicted Co. 7, inasmuch as it had already been in mind at the time of Nonindicted Co. 7’s act of evading gift tax, it may be deemed that the Defendant was aware of the fact that he would evade gift tax if he would be a bypass listing Nonindicted Co. 7 through a merger. Accordingly, the lower judgment that denied the Defendant’s intention of evading gift tax evasion and acquitted this part of the facts charged is unlawful.

(3) misunderstanding of facts and misapprehension of legal principles as to fraudulent fraudulent transactions

The court below found the defendant not guilty of this part of the facts charged on the ground that it is difficult to acknowledge that the defendant made a false representation of important matters or made use of documents containing any necessary facts by omitting the fact of holding a borrowed stocks in a merger report, a report on the change of the largest shareholder, or a report on the holding of stocks owned by executives and major shareholders, but it is difficult to find the defendant to gain monetary profits by inducing misunderstanding of another person. However, the court below found the defendant guilty of this part of the facts charged, but it is erroneous in the misapprehension of legal principles or misapprehension of legal principles as to misunderstanding of facts and violation of the Securities and Exchange Act, since it is understood that the circumstances of the company are difficult if the defendant disposes of the stocks after publishing the fact of holding the stocks in a true manner, ② where the defendant reports the fact of holding stocks in a true manner, it is difficult to obtain gains by selling stocks in accordance with the trend of the stock market because it is impossible to dispose of the stocks for two years because the stocks held by the defendant are subject to protection, and ③ it is possible to reduce transfer income tax by distributing the stocks in a borrowed name.

(4) misunderstanding of facts as to the manipulation of market price on September 7, 2006

The court below found the defendant not guilty of this part of the facts charged on September 7, 2006 on the ground that it is difficult to recognize the market price manipulation on the part of the non-indicted 5's non-indicted 5's market price manipulation but it is difficult to view the defendant's participation in it. However, the defendant collected the shares to the non-indicted 1 or his administrator non-indicted 5 so that the share price can be mistaken, and accordingly, the non-indicted 5's share price manipulation was caused to increase the share price, so long as the non-indicted 5 actively participated in the market price manipulation on September 7, 2006, the defendant could be deemed to have actively participated in the market

(5) The assertion of unreasonable sentencing

In light of the fact that the fair trade order in the capital market is significantly disturbed due to the crime of violation of the Securities and Exchange Act by the defendant's manipulation and that the profit of KRW 00 million is realized by the sale of borrowed stocks, the punishment of imprisonment with prison labor for 8 months and the suspended sentence for 2 years, which the court below sentenced to the defendant

2. Determination on the grounds for appeal

(a) Ex officio destruction;

First, as to the part concerning the evasion of gift tax and constructive gift tax among the facts charged by the prosecutor in the trial of the trial of the trial of the court, the prosecutor added the charges of the defendant's violation of special family law (tax) due to his evasion of gift tax through a transfer of borrowed stocks and the special family law due to a transfer of stocks through a transfer of stocks on or before July 2006 and the charges of violation of special family law (tax) due to a transfer of stocks through a transfer of stocks on or after the merger on or after July 2006 as concurrent crimes, and around September 26, 2003, the prosecutor first added the charges of indictment as preliminary charges of the defendant's violation of special family law (tax) and the charges of the violation of special family law (tax) due to the transfer of stocks on or after September 203, 2003 as well as the charges of the violation of the special family law (tax) by the court of the trial of the court below on the transfer of stocks on or after the transfer of stocks on or after the transfer of stocks.

However, despite the above reasons for ex officio reversal, the argument in the grounds for appeal concerning mistake of facts and misapprehension of legal principles by the defendant and prosecutor is still subject to the judgment of this court.

B. Judgment on the grounds of appeal on the violation of the Securities and Exchange Act due to the defendant's market price manipulation

(1) As to whether the Defendant had the intent to attract the Defendant to trade

(A) Relevant legal principles

Article 188-4 (2) of the former Securities and Exchange Act (amended 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, effective Feb. 4, 2009; hereinafter referred to as the "former Securities and Exchange Act") provides that "the purpose of inducing the sale and purchase transaction" of Article 188-4 (2) of the former Securities and Exchange Act is to make artificial manipulation and to change the market price, the investor is not at issue as to whether the market price is in existence with other purposes or purpose with the intention to attract the sale and purchase of securities, and there is a lack of awareness of the purpose. Furthermore, "the sale and purchase" of subparagraph 1 of the aforesaid Article means "the sale and purchase of securities is made by mistake or with the intention of changing the market price before and after the sale and purchase price of securities, which is 90 or more severe than the market price, and it is sufficient that there is no possibility that there exists any change in the market price due to any other artificial act.

(B) Determination

In full view of the following circumstances that can be recognized by the evidence duly adopted and examined by the court below and the circumstances as well as the circumstances, forms, and motive of the transaction at the time of the purchase of shares by the defendant, the court below can be deemed that at the time of the purchase of shares of Nonindicted Co. 3 around October 2006 and the time of the purchase of shares of Nonindicted Co. 3 from July 2008 to November 2008, the defendant had "the purpose of soliciting the transaction" under the aforementioned legal principles.

1) The Defendant asserted that, while purchasing shares through the real name account, only anticipated to increase the share price through natural demand and supply in the stock market, and that there was no purpose to attract the sale and purchase transaction. However, according to the advice of Nonindicted Company 8 that, in order to solve the low-evaluation problem of the shares of Nonindicted Company 3, the Defendant and his family members possess most of the shares of Nonindicted Company 3, a listed corporation through their real name or borrowed name, it is necessary to increase the quantity of the shares traded in the market by selling part of the shares on the part of his majority shareholder to improve liquidity and exchange of the shares. As can be seen from the point of view that the Defendant’s side sold shares in large quantity from April 2, 2007 to November 6, 207 through a large-time market, the Defendant had purchased shares in large quantity, rather than from around October 3, 2006, it can be seen that the Defendant had purchased shares in large quantity before and after the purchase of shares of Nonindicted Company 3, which were naturally purchased from around 2006.

2) From August 9, 2006 to March 6, 2008, the Defendant received the sales price of the borrowed stocks from the market price to the total of 4.3 billion won. In light of the fact that the Defendant sold the borrowed stocks up to the total of 1.8 billion won only in the year 2006, and in particular, the Defendant sold the borrowed stocks from October 25, 2006 to December 15, 2006, when the Defendant finished the purchase of the stocks, it is difficult to deem that the Defendant did not intend to obtain profit margins by selling its borrowed stocks with the share price formed through artificial manipulation by the Defendant at the time of purchasing the stocks around October 2006.

3) The Defendant asserted that there was a conversation between the employees of the company and the employees of the securities company that engaged in the stock purchase business and that there was no act or behavior to artificially manipulate the share price. However, as the lower court duly decided, the Defendant’s dialogue between the employees of the Defendant company and the employees of the securities company about the share purchase order or the share price formed as a result of the purchase of shares to increase and maintain the share price at a certain level, and there was a dialogue between the employees of the securities company and the employees of the securities company to the effect that the contents of the conversation were about the share purchase order or the share price formed as a result of the purchase of shares to increase and maintain the share price at a certain level, and that there was an attempt to artificially increase or maintain the share price. In light of the fact that the employees of the Defendant company want to collect shares at a low price as much as possible, it may be deemed that the employees of the

4) The Defendant asserts that an expensive purchase order and a closed-price purchase order are a form of purchase order inevitably selected to purchase a large quantity of stocks in a small quantity in the stock market, and the Defendant’s purpose of inducing the Defendant to purchase stocks is not acknowledged on the ground that there is such purchase order. However, as stated in the judgment of the court below, the Defendant, as stated in the judgment of the court below, purchased the stocks of Nonindicted Co. 3 from October 9, 2006 and July 3, 2008, when he purchased the stocks of Nonindicted Co. 3 from around July 3, 2008, at a higher price than the anticipated purchase price, or purchased the stocks at a higher price than the anticipated purchase price at the same time. In light of the fact that the quantity of stocks distributed by the Defendant inevitably purchased the stocks in order to purchase the stocks at a large quantity in a large quantity, it cannot be deemed that the Defendant inevitably purchased the stocks at a higher price for a large quantity in the stock market, and rather, it can be deemed that the above high-price purchase order and the above high-price order.

5) The Defendant merely cancelled an ex post facto purchase order according to the change in the market situation, and argued that there was no permission order. However, although the average size per unit of the purchase order pointed out as the permission order exceeds the number of the Defendant’s average purchase orders for the same period, and at that time, there is no special circumstance that the Defendant would make a large volume of purchase orders differently from other purchase orders, it may be deemed that the Defendant, with an actual intention to purchase, did not directly make a large volume of purchase orders, but rather, it can be deemed that the Defendant cancelled the purchase order at a lower price than the immediately preceding one in order to see that the purchase order without the actual intention to purchase was cancelled at an appropriate time.

6) The Defendant asserts that it is merely a natural purchase order that intends to purchase stocks at a certain price lower than the market price. However, if the price drops as seen earlier, if a large volume of purchase order is issued at a certain price lower than the market price, it can be artificially prevented the decline of natural price. Thus, such purchase order may also be deemed a purchase order that artificially alters the market price.

(2) Whether the Defendant participated in market price manipulation

(A) Relevant legal principles

In the case of joint principal offenders who jointly process more than two persons and commit a crime, the conspiracy or conspiracy is not necessarily required to be made directly, explicitly, but may be made objectively and implicitly. However, in any case, there is a combination of intent to jointly process a crime and realize it jointly. In a case where the defendant denies the criminal intent together with the fact of conspiracy, the facts constituting such subjective element should be proven by means of proving indirect facts or circumstantial facts which have considerable relevance with the criminal intent due to the nature of things.

On the other hand, the co-principal under Article 30 of the Criminal Act is established by satisfying the subjective and objective requirements, which are the commission of a crime through functional control based on the intention of co-processing and the intention of co-processing. Even in cases where part of the conspiracys have not been carried out by directly sharing part of the constituent acts, considering the status and role of them in the whole crime, control or power over the progress of the crime, etc., if it is acknowledged that a functional control through essential contribution to the crime exists not just as a mere conspiracy, but as a co-principal, a crime cannot be exempted (see Supreme Court Decision 2008Do6551, Feb. 12, 2009).

(B) Determination

Based on the legal principles as seen earlier, the court below can be acknowledged by the evidence duly adopted and investigated by the court below. In other words, the defendant ordered the employees of the company employed by himself to contribute funds from Nonindicted Co. 9, Nonindicted Co. 10, and Nonindicted Co. 11, and 12, who are children, to purchase the shares of Nonindicted Co. 3 by actively purchasing the shares of Nonindicted Co. 3, who are practically operating the company, and due to the change in the prices of Nonindicted Co. 3, who are in large possession of the defendant due to the purchase of shares, the profits and losses accrued therefrom actually belong to the defendant. In full view of the fact that the defendant confirmed the change in the share prices of Nonindicted Co. 3, from the employees of the company from time to time, and ordered the purchase of shares directly from the employees of the company to purchase the shares by actively ordering the employees of the company to purchase the shares with the funds of the company or children.

Therefore, the Defendant, from October 9, 2006 to October 26, 2006, bears the burden of liability as a co-principal with regard to market price manipulation from July 3, 2008 to November 28, 2008.

(3) Sub-determination

Therefore, the judgment below which found the defendant guilty of violation of the Securities and Exchange Act due to the price manipulation from October 9, 2006 to October 26, 2006 and price manipulation from July 3, 2008 to November 28, 2008 is just, and there is no error of misunderstanding of facts or misunderstanding of legal principles as alleged in the grounds for appeal.

C. Determination on the prosecutor's grounds for appeal

(1) As to the assertion of mistake of facts as to the violation of special family law

(A) Determination as to the acceptance of 150,000 bills

In light of the circumstances indicated in the lower judgment and the following circumstances that can be recognized by the evidence duly adopted and investigated by the lower court, ① Nonindicted 1, 30 million won for the Canadian Games on November 24, 1998, ② Nonindicted 1, 300 million won for the Olympic Winter Games on December 13, 199, ③ 50 million won for the Rotte Olympic Winter Games on November 4, 2004, and 50 million won for the Katar Olympic Winter Games on December 5, 2006, respectively, was donated to the Korea Bardol Association for the reasons that the public prosecutor did not know that there was a relatively less than 50 million won for the above Kadol Games on the ground that there was a relatively less than 10 million won for the Kadol Games’s official motive for the 1998, and there was no error in the law of 500,000 won for the Kadol Games’s official motive for a relatively less than 100,0000,0000 won.

(B) Determination on the issue of the request for loss disposal

In light of the circumstances as stated in the judgment of the court below, namely, the defendant demanded the disposal of the shares of Nonindicted Co. 1 for the first time after January 208 and May 208. At that time, since the tax investigation on Nonindicted Co. 1 was conducted before it was conducted, it cannot be deemed that the defendant made the above demand as to Nonindicted Co. 1 in connection with the tax investigation. In particular, around January 2008, it is difficult for the defendant to settle the accounts for the 207 business of Nonindicted Co. 2, etc. operated by Nonindicted Co. 1 and prepare the corporate tax return and payment for business income by purchasing the shares owned by Nonindicted Co. 6’s management, and it is difficult for the defendant to find that there was no possibility that the defendant would have made a demand for the temporary settlement of the shares of Nonindicted Co. 1 in accordance with the previous plan for the settlement of the shares for the first time after the lapse of January 208 to the extent that it would have been difficult for him to receive the settlement of the shares for the second time.

Therefore, the judgment of the court below that acquitted this part of the facts charged shall not be erroneous or erroneous in the misapprehension of legal principles.

(2) As to the assertion of misunderstanding of facts and misapprehension of legal principles as to the violation of special law (tax)

(A) The number of crimes of violation of special law (tax)

1) Relevant legal principles

In principle, the number of crimes committed by tax evasion is established on the basis of the recovery of the elements of the violation. However, Article 8(1) of the former Act on the Aggravated Punishment (amended by Act No. 9919, Jan. 1, 2010; hereinafter “former Aggravated Punishment Act”) stipulates that the annual amount of tax evasion constitutes a single type of crime by combining the acts under Article 9(1) of the former Punishment of Tax Evaders Act (amended by Act No. 8138, Dec. 30, 2006; hereinafter “former Punishment of Tax Evaders Act”) with the acts under Article 9(1) of the former Punishment of Tax Evaders Act (amended by Act No. 8138, Dec. 30, 2006; hereinafter “former Punishment of Tax Evaders Act”), regardless of the type of tax, if the sum of taxes evaded for one year exceeds the amount under Article 8(1) of the former Aggravated Punishment Act, only one of the violations shall be established, and the offense constitutes one year and constitutes a concurrent relationship between them.

Meanwhile, in the same paragraph, the term "year" means not only the subject period to be added to the amount of evaded tax in order to determine whether it is subject to the application, but also one of the major elements to determine the objective scope of the number of the crimes and the res judicata. However, it is natural that the concept of "annual" should be clarified so that the act of tax evasion can be seen as a violation from the perspective of ordinary people and as a result, and what punishment is imposed. If the term "annually" is used for the same term as in the same paragraph, and the period of calculation is not specified, it is common to understand it as one year from January 1 of the calendar year to December 31 of the calendar year, and it is more appropriate to regard it as a request for clarity of penal law. In light of the fact that the act of tax evasion is completed only when the return, payment period, etc. as provided in Article 9-3 of the former Punishment of Tax Evaders Act expires, the term "annual tax amount, etc." in Article 8 (1) of the former Punishment of Tax Evaders Act means the amount of tax evasion, etc.

In addition, the subject of the crime of tax evasion under Article 9 (1) of the former Punishment of Tax Evaders Act is the taxpayer under Article 9 (1) of the same Act and the representative of the corporation under Article 3 of the same Act, the agent, employee, and other employees of the corporation or individual. The provisions of Article 8 (1) of the former Aggravated Punishment Act, which include the elements of the annual amount of tax evasion in cases where the amount of tax evasion exceeds a certain amount of amount, shall be aggravated punishment for the crime of tax evasion. In the application of the same Article, the determination of whether the amount of tax evaded as the taxpayer and the amount of tax evaded as the offender under Article 3 of the Punishment of Tax Evaders Act shall be made by aggregating all the amount of tax evaded as the offender (see Supreme Court Decision 2004Do714

2) Determination

In this case, the prosecutor indicted the defendant as a blanket crime of violating the Special Act (tax) in September 2003 of the defendant's donation of borrowed-name shares and donation of subscription for new shares on December 26, 2003, the evasion of gift tax due to bypass listing through a merger on July 2006, and the evasion of transfer income tax due to transfer of borrowed-name shares in 2006, and then indicted as a blanket crime of violating the Special Act (tax). On September 2003, the prosecutor added the charges of violating the Special Act (tax) due to the evasion of gift tax due to the transfer of borrowed-name shares and the special Act due to the evasion of gift tax due to the transfer of stocks through a merger on July 2006 to prosecute concurrent crimes (tax). Unless there are special circumstances such as the defendant's disadvantage to the defendant's exercise of his right of defense, the court did not admit the comprehensive crime of violation of the Act as a concurrent crime and thus, it did not err in the judgment of the court below.

In the case of the act of evading gift tax, which takes the method of imposing the first return, the taxpayer does not report the tax base under the Act for the purpose of evading the tax, if the deadline for filing the tax base expires pursuant to the proviso of Article 9-3 subparagraph 1 of the former Punishment of Tax Evaders Act, and the crime of 1 crime is established individually after the deadline for filing the tax base for each gift act and each gift act according to the donee. In the case of the act of evading transfer income tax, which takes the method of filing the return, if the taxpayer does not report the tax base pursuant to the Act for the purpose of evading the tax, the number of years after the deadline for filing the return and payment expires pursuant to subparagraph 2 of the same Article is reached, and the crime of 1 crime is established individually after the lapse of the deadline

However, in light of the aforementioned legal principles as to the number of crimes of violation of the Act on Special Cases (Tax), in this case where a prosecutor indicted a defendant's tax evasion act against Article 8 (1) of the former Special Cases Act, the act of tax evasion committed by the defendant as the principal offender of a tax evasion crime under Article 9 (1) of the former Punishment of Tax Evaders Act has been completed for a period of one year from January 1 to December 31 of the year under the previous Punishment of Tax Evaders Act, so long as the act of tax evasion committed by the defendant as the principal offender of a tax evasion crime under the previous Act has been completed for a period of one year from January 1 to December 31 of the year, the act of tax evasion constitutes only one violation of Article 8 (1) of the former Punishment of Tax Evaders Act where the total sum of the amount of the evaded tax is more than the amount stipulated in Article 8 (1) of the former Special Cases Act, regardless of whether the defendant committed as a taxpayer or an agent of another person's act, and thus, the crime of tax evasion constitutes concurrent crimes against the defendant.

Therefore, according to the facts charged by the prosecutor of this case, since the defendant's act of evading gift tax by transferring borrowed stocks to his children around September 2003 as proxy around September 12, 11, and 14, which is his children, has been committed in 2003, one crime of violating special Acts (tax) can be established by summing up the evaded amount of gift tax together. (2) The defendant's act of evading gift tax by getting his representatives of non-indicted 12, 11, and 14 on December 26, 2003 to get capital gains tax paid by capital gains tax paid by 104 can be established by adding up the evaded amount of gift tax to 12, 11, and 204, and the defendant's act of evading transfer income tax imposed by 200 months after the lapse of 20 years from the date of such act of evading transfer income tax as proxy. (3) The defendant's act of evading transfer income tax by 12,114, and 207.

(B) On September 2003, as to whether the defendant's violation of special law (tax) due to the evasion of gift tax by donation of borrowed stocks

1) Determination as to whether the Defendant donated the borrowed stocks to his children around September 2003

The court below's decision that can be acknowledged by the evidence duly adopted and investigated by the court below, that is, there is no specific material that the defendant donated to the non-indicted 12, 11, and 14, who is his children, and there is no evidence that the defendant's children specified and managed the material, and there is no gift contract, etc. on the material at the time when the defendant donated the material, nor there is no evidence that the gift tax was reported and paid, and even the donation contract that the defendant donated the material to the non-indicted 14 in 190 and 192 also was made retroactively from the tax investigation of February 2009 to explain the date of raising funds for acquiring the shares of the non-indicted 14 in the non-indicted 12, 11, and 14 in the 190s, it cannot be deemed that the defendant donated the material possessed by him.

In addition, the court below's ruling that the deposit account in the name of the defendant was opened under the direction of the defendant, i.e., ① the management of the deposit account in the name of the defendant, and the deposit money was entirely used under the direction of the defendant. ② The deposit money in the name of the defendant was used after the deposit money in the name of his children was deposited, and there were only the balance of the deposit money in the name of the defendant around September 2003 until the deposit money was paid. ③ The defendant newly deposited the fund required for the payment of the purchase price of shares in the name of his children, ③ The deposit account in the name of the defendant's financial institution was owned under the name of his own name and the deposit money was owned under the name of his own name. Since the deposit money in the name of the defendant was deposited under the name of his own name, the court below's ruling that the deposit money in the name of the defendant was deposited under the name of his own 10 children cannot be viewed as the deposit money in the name of his own 20 years or more (the court's ruling that the deposit account was held under the name of 20.8 years.

On the other hand, whether there was a stock donation subject to gift tax under the tax law should be determined by whether there was an agreement with the intention to make a stock donation and a position to exercise the rights as a shareholder (see Supreme Court Decision 2004Do817, Jun. 29, 2006). As can be acknowledged by the above circumstances and evidence duly adopted and investigated by the court below, the Defendant’s children at the time of the transfer of borrowed stocks appear to have been aware of the above transfer of stocks to a certain extent. After the transfer of stocks, Nonindicted 12, 11, and 14, the Defendant’s children, who were the Defendant’s children, were treated as actual shareholders, and the publication was made accordingly. In full view of the fact that Nonindicted 7 Company acquired stocks under the name of the Defendant’s children after the merger with Nonindicted 3 Stock Company, the transfer of stocks under the name of the Defendant at the time of transfer, and the transfer of stocks under the title holder’s name at the time of transfer of stocks under the name of the Defendant’s transfer of stocks under the title holder’s name.

2) Determination as to the establishment of “Fraud or other unlawful act”

A) Relevant legal principles

Article 8(1) of the former Aggravated Punishment Act and Article 9(1) of the former Punishment of Tax Evaders Act mean an act that enables the evasion of tax, that is, a deceptive scheme or other active act that makes it impossible or considerably difficult to impose and collect tax, and thus, it does not constitute a mere failure to report under the tax law or making a false report without accompanying any other act. However, if a false double contract is prepared and used actively, it can be deemed that a taxpayer uses a "Fraud or unlawful means", and in case of a gift tax by which the person liable to pay tax becomes liable to pay taxes in return for a failure to report or underreporting as a means of tax evasion, "Fraud or other unlawful act" is recognized (see Supreme Court Decisions 98Do667, Apr. 9, 199; 2004Do817, Jun. 29, 2006).

B) Determination

As can be acknowledged by the evidence duly adopted and examined by the court below, although the defendant donated the borrowed stocks to the children, the defendant prepared a false stock sales contract to show that the children of the defendant purchased the borrowed stocks directly from the borrowed stockholders, and in order to create appearance such as the actual payment of the purchase price of the borrowed stocks, the defendant used the method of directly transferring the money from the deposit account in the name of the borrowed stockholders in the name of the seller, or depositing the money deposited from the deposit account in the name of the defendant's children into the name of the borrowed stockholders, and the transfer income tax on the profits from the transfer of the borrowed stocks of the nominal seller, which is the nominal seller, voluntarily reporting and paying the transfer income tax on the profits from the transfer of the borrowed stocks, making it impossible or difficult for the defendant's children to discover the gift from the borrowed stocks, and making it considerably difficult to impose and collect gift tax on the gift from the donation of the borrowed stocks. Thus, the above act by the defendant constitutes fraud or other unlawful act stipulated in Article 9 (1) of the former Punishment of Tax Evaders Act.

(iii)the calculation of evaded tax amounts;

The tax amount to be confirmed in criminal proceedings against a tax evasion crime is identical to the amount and scope of tax liability under the tax law to be imposed on the relevant tax evasion crime (see Supreme Court Decision 9Do5191 delivered on February 8, 2000).

According to the legal principles as to the calculation of the amount of tax evaded by the defendant, the amount of tax evaded by the defendant was lawfully adopted: KRW 30,00 in the case of non-indicted 12; KRW 44,00 in the case of non-indicted 12; KRW 34,40 in the case of non-indicted 14; KRW 42,918 in the case of non-indicted 12; KRW 1,287,50 in the case of non-indicted 12; KRW 400 in the case of non-indicted 30; KRW 1,00 in the case of non-indicted 40; KRW 20 in the case of non-indicted 40; KRW 1,00 in the case of non-indicted 12; KRW 40 in the case of non-indicted 40; KRW 30 in the case of non-indicted 40 in the case of non-indicted 30; KRW 308,91 in the case of non-indicted 11111.

In September 2006, the Defendant paid KRW 175,146,720 as a result of the rectification of gift tax following Nonindicted 11’s acquisition of shares at a low price by the following shareholders in September 2003. Since Nonindicted 12 and Nonindicted 14 were indicated to have acquired shares at a low price from the following shareholders in September 2003, there is a timely payment of gift tax, Nonindicted 11, 12, and 14 should be deducted from the above amount of gift tax. However, the Defendant asserted that the gift tax should be deducted from the above amount of gift tax, even though the deadline for filing a return on the tax base or tax amount of gift tax was passed since Nonindicted 11 and Nonindicted 12 and Nonindicted 14 did not report on the actual transaction between their children and the next shareholders, and even if there was a fact that additional tax evasion was completed after the deadline for filing a return, it cannot affect the establishment of the crime of tax evasion (see Supreme Court Decision 2005Do1384, March 28, 1985).

4) The defendant's establishment of a violation of special law (tax) due to donation of borrowed stocks around September 2003.

As seen earlier, since the amount of gift tax evaded in 2003 by the Defendant’s donation of borrowed stocks exceeds the amount prescribed by Article 8(1)1 of the former Aggravated Punishment Act, since the amount of gift tax evaded in 1,380,924,480 won exceeds the amount prescribed by Article 8(1)1 of the former Aggravated Punishment Act, the Defendant’s violation of the Aggravated Punishment Act (tax) is established as to the Defendant’s act of evading gift tax due to the donation of borrowed stocks around September

(C) On December 26, 2003, as to whether the defendant's violation of special law by issuing new shares on December 26, 2003 (tax) was established

As can be acknowledged by the evidence duly adopted and examined by the court below, the defendant's total amount of the gift tax calculated from the defendant is less than KRW 50,000,00 in the case of non-indicted 12's gift tax amount on the shares that the defendant donated to his children (= KRW 5,000 x 10,000), in the case of non-indicted 11, 74,000 in the case of non-indicted 14 (= KRW 5,000 x 14,800) and 58,150,000 in the case of non-indicted 14 (= KRW 5,00 x 5,00 x 11,630 x 11,630). Accordingly, it is clear that the defendant's total amount of the gift tax calculated from the above is less than KRW 500,000 in the amount under Article 8 (1) 2 of the former Aggravated Punishment Act, and thus, it cannot be punished under Article 8 (1) of the former Punishment of Tax Evaders Act.

Therefore, this part of the facts charged constitutes a case where the prosecution procedure is invalid in violation of the provisions of law, and thus, the prosecution should be dismissed pursuant to Article 327 subparagraph 2 of the Criminal Procedure Act.

(D) On July 2006, whether the Defendant’s crime of evasion of constructive gift tax through a bypass listing through a merger and of violation of special laws (tax) due to the transfer of borrowed stocks in 2006 is established

1) Determination as to whether the Defendant evades a constructive gift tax due to a bypass listing through a merger around July 2006

A) Requirements for establishing gift tax liability

Article 41-5(1) of the former Inheritance and Gift Tax Act (amended by Act No. 7010, Dec. 30, 2003; hereinafter “former Inheritance and Gift Tax Act”) provides that “In case where a person who has a special relationship with the largest shareholder, etc. receives a donation of stocks, etc. of the relevant corporation from the largest shareholder, etc., or has acquired the stocks, etc. of another corporation from a person other than the largest shareholder, etc., or acquired the stocks, etc. of the relevant corporation with donated assets, etc., or acquired them, etc., as a result of a merger with a stock-listed corporation or an Association-registered corporation having a special relationship with the relevant corporation within 3 years from the date of donation of the relevant stocks, etc., in case where the value increases due to the merger with

Meanwhile, Article 41-3(1) of the former Inheritance and Gift Tax Act provides that “where a corporation or another corporation acquires stocks, etc. of the relevant corporation or another corporation with the property donated by the largest shareholder, etc., the property shall be donated to the largest shareholder, etc. within three years retroactively from the date of acquisition of stocks, etc.

In addition, pursuant to Article 41-5(1) of the former Inheritance and Gift Tax Act, Article 31-8(1) and Article 31-6(3) of the former Enforcement Decree of the Inheritance and Gift Tax Act provides that the difference between the taxable value of the gift tax per share as of the date of donation of stocks, etc. and the total amount of profits resulting from the substantial increase in the corporate value per share as of the date of donation of stocks, etc. shall be at least 30/100 of the taxable value of the gift tax per share as of the date of donation of stocks, etc., or 50 million won or more, by the number of stocks donated or acquired with compensation for the difference.

B) Determination as to the establishment of “Fraud or other unlawful act”

In light of the legal principles on “Fraud and other unlawful act” in the crime of tax evasion as seen earlier, in a case where a deemed gift tax evasion pursuant to Article 41-5(1) of the former Inheritance and Gift Tax Act was committed by deception or other unlawful act that makes it impossible or considerably difficult to impose and collect deemed gift tax, as in the same way as other taxes, it may be deemed that there was “Fraud or other unlawful act” under Article 9(1) of the former Punishment of Tax Evaders Act.

However, gift tax liability is established when a person with a special relationship with the largest shareholder, etc. receives stocks, etc. of the relevant corporation from the largest shareholder, etc. or acquires stocks, etc. of another corporation from the person other than the largest shareholder, etc. with donated stocks, etc., or acquires stocks, etc. of the relevant corporation from the person other than the largest shareholder, etc. with the donated stocks, etc., and the value of stocks, etc. donated or acquired for compensation in consequence of a merger with a stock-listed corporation or Association-registered corporation having a special relationship with the relevant corporation or another corporation increases above a certain standard within three years from the donation date of such stocks, etc. Thus, if the defendant conceals the fact of donation of stocks, etc. or the fact of onerous acquisition of stocks, etc., which serves as the premise for imposing constructive gift

Therefore, as seen in the instant case, ① even though the Defendant donated the borrowed stocks to his children, the Defendant prepared a false stock sales contract in order to show that his children would have purchased the stocks directly from the borrowed stockholders, ② in order to make the appearance such as the actual payment of the purchase price of the stocks, the Defendant directly transferred the money from the deposit account in the name of his children to the deposit account in the name of his own name, or deposited the money from the name of his own children into the deposit account in the name of his own name, and thereby, it is impossible for the Defendant to voluntarily report and pay the transfer income tax on the gains from the transfer of the stocks in the name of his nominal seller to make it difficult for his own children to become the premise of imposing the gift tax by making it difficult for the Defendant’s children to become the largest shareholder, who is the largest shareholder, and ② in the name of his own children, to view the fact that the Defendant opened the borrowed stocks under the name of his own name and his own property within the name of his own 12, 11 and 14, respectively, and then, deposited the funds in the Defendant’s name and the 194.

Therefore, the Defendant’s act of evading gift tax pursuant to Article 41-5(1) of the former Inheritance and Gift Tax Act can be deemed to have been “Fraud or other unlawful act” (ordinaryly, it is extremely difficult for the tax authority to indicate the nature of the funds to be acquired prior to the party’s accurate report, and as can be acknowledged by the evidence duly adopted and investigated by the lower court, in this case, it was not clear from the suspicion that the funds for acquiring shares were donated to the Defendant even though the tax authority investigated the source of funds for purchasing shares to Nonindicted 12, etc., the Defendant’s child, despite having been duly adopted and investigated by the lower court. In addition, even when the source investigation on Nonindicted 14 on Nonindicted 14’s funds for purchasing shares, the tax authority failed to find out the suspicion that Nonindicted 14 purchased shares as property donated by the Defendant within 15 years, the exclusion period of gift

C) Determination on the intent to evade gift tax

(1) Necessity of the crime of evading gift tax or gift tax.

"Fraud and other unlawful acts" under Article 9 (1) of the former Punishment of Tax Evaders Act refers to the fraudulent and other unlawful acts that make it impossible or considerably difficult to impose and collect taxes, and the crime of tax evasion, which is constituted by such fraudulent and other unlawful acts, does not require the defendant to evade or evade taxes, since the crime of tax evasion is not an intentional crime, it does not require the defendant to evade or evade taxes. In such a crime of tax evasion, the term "the person liable to pay taxes," knowing that his act constitutes fraud and other unlawful acts, and commits or attempts to commit unlawful acts while recognizing the fact that the act of tax evasion results in tax evasion (see Supreme Court Decision 2004Do817, Jun. 29, 2006).

Therefore, as seen above, insofar as the Defendant’s act of evading gift tax due to the evasion of gift tax (tax) due to the Defendant’s act of evading the Defendant’s children on or around September 2003 following the merger around July 2007 and the offense of violating special family law due to the evasion of gift tax due to the bypass listing on or around July 2006 constitutes a separate crime of concurrent crimes, as long as the Defendant’s act of evading gift tax due to the bypass listing on or around September 2003 constitutes an offense of evading gift tax at the time of donation to his children on or around September 2003, even if there was no separate criminal intent of evading gift tax due to the bypass listing on or around July 2006, the offense of violating special family tax due to the evasion of gift tax due to the bypass listing on or around July 2006 is not established (tax).

Therefore, at the time of the “Fraud and other unlawful acts” which make it impossible or considerably difficult to impose and collect constructive gift tax in order to constitute a crime of evading gift tax, there should be the criminal intent of evading gift tax, recognizing that the act constitutes “Fraud and other unlawful acts,” and recognizing the fact that the act would result in the result of the evasion of constructive gift tax. Thus, in order to establish a crime of evading gift tax through a bypass listing through a merger around July 2006, the Defendant, which corresponds to “Fraud and other unlawful acts,” as at the time of the concealment of the gift tax by stocks on the premise of a bypass listing under the premise of a bypass listing through the merger, should be recognized that there would be the increased amount of gift by again increasing the value of the stocks donated through the merger, namely, the perception of the Defendant’s liability to pay tax on the gift tax and the result of such unlawful act, and that it would be necessary to recognize the fact of evading gift tax as the result of such unlawful act.

(2) Judgment on the existence of the crime of evading gift tax or not guilty.

At the time of September 2003, the Defendant did not consider Nonindicted Co. 7’s bypassing the list of Nonindicted Co. 7, and claimed that at the time of Nonindicted Co. 7’s transfer of Nonindicted Co. 7’s shares to his children around September 2003, Nonindicted Co. 15, a KOSDAQ-listed corporation, was acquired in order to circumvent Nonindicted Co. 6’s bypassing the list of Nonindicted Co. 16, and merely selected Nonindicted Co. 16 as a main agent to enhance the performance of Nonindicted Co. 16.

However, in full view of the following circumstances that can be recognized by the evidence duly adopted and examined by the court below, at the time when the defendant actively concealed the transfer of borrowed stocks to his children around September 2003, thereby making it difficult to detect the fact of donation of stocks, which serves as the premise for imposing constructive gift tax, or the fact of acquiring the stocks donated within three years, with the property donated within three years, making it impossible or considerably difficult to impose and collect constructive gift tax, it can be deemed that the defendant acquired Nonindicted Co. 15, a KOSDAQ-listed corporation, in consideration of Nonindicted Co. 7’s round listing, which donated borrowed stocks to his children.

Therefore, it can be said that the defendant had the awareness of the criminal intent to increase the value of the shares transferred through the merger and to donate the increased value of the shares to his/her children, namely, the awareness of liability for tax payment of constructive gift tax and the fact that the result of the wrongful act occurs.

On May 9, 2009, Nonindicted Co. 17, who had been in charge of Nonindicted Co. 7’s property and fund management business of Nonindicted Co. 1 and Nonindicted Co. 7, at the time of 2003, prepared to list Nonindicted Co. 7 on the KOSDAQ directly from May 9, 2009, but failed to meet the listing requirements due to excessive payment guarantee for Nonindicted Co. 18 and Nonindicted Co. 6 Co., Ltd., which were its subsidiaries, so that most of the shares of listed companies could be held by the Defendant and disposed of, and that Nonindicted Co. 15 Co. 7, which was called Nonindicted Co. 1 and Nonindicted Co. 3’s name before changing the name of the Defendant’s children to the name of Nonindicted Co. 7, Nonindicted Co. 1 and Nonindicted Co. 3, who were in charge of Nonindicted Co. 1 and Nonindicted Co. 7, who were in charge of Nonindicted Co. 1 and Nonindicted Co. 1, who were in charge of Nonindicted Co. 3’s name of 7.

(B) On May 16, 2005, Nonindicted 19, who became a member of Nonindicted Co. 7 and was in charge of the business of managing the property and funds of the Defendant and his family, stated in the prosecutorial statement that “Around January 2009, Nonindicted Co. 19, who was working for Nonindicted Co. 7, stated that “I would like to acquire one company from Nonindicted Co. 7 and would like to introduce three companies, including Nonindicted Co. 15, and would like to introduce three companies at the early 2003.” (Evidence No. 4657 of the evidence record) (after Nonindicted Co. 19 was the prosecutorial investigation, there was no plan to list or list Nonindicted Co. 7, around September 2003, Nonindicted Co. 16 selected Nonindicted Co. 19 as a main agent, but it is difficult to believe the Defendant’s relationship with the Defendant, Nonindicted Co. 19, Nonindicted Co. 19, and the Defendant’s statement during the 15th period.

On May 20, 2009, the Defendant expressed in the interrogation of the prosecution that “The Defendant had made many efforts to list Nonindicted Co. 7 directly, but it is difficult for the Defendant to list the company as a matter of the payment guarantee between the related parties, and there is a considerable time to resolve this problem. In the process of finding out the method of listing Nonindicted Co. 7 as soon as possible, the Defendant took over one of the KOSDAQ-listeds while he was aware of the method of listing Nonindicted Co. 7, and gave advice to the effect that it may be listed if he merges with Nonindicted Co. 7. Accordingly, the Defendant acquired Nonindicted Co. 15, a KOSDAQ-listed corporation in 2003 to circumvent Nonindicted Co. 7 (Evidence No. 1277)” (Evidence No. 1277). The Defendant stated in the court of the court below that “In order to prepare for listing the KOSDAQ market of Nonindicted Co. 7 in 2003, the Defendant also selected Nonindicted Co. 16 as a weekly company.”

In June 2003, the Defendant acquired Nonindicted Co. 15, a corporation listed on the KOSDAQ. At that time, Nonindicted Co. 6 had already concluded an advisory agreement with Nonindicted Co. 16 on Sept. 30, 2002 (Evidence No. 733), and delivered the investment prospectus prepared under the agreement to investors, and received an investment by a third party from Nonindicted Co. 21, Nonindicted Co. 22, Nonindicted Co. 23, and Nonindicted Co. 23 until May 23, 2004, attracting an external fund of KRW 11 billion in total from Nonindicted Co. 6’s external funds. Accordingly, if Nonindicted Co. 6’s stocks were listed on the part of the Defendant, as alleged by the Defendant, it is difficult to accept the Defendant’s assertion that Nonindicted Co. 6’s stocks were held on the part of Nonindicted Co. 21, 203 in that it would have a result of gaining profits from the listing by the Defendant or a third party.

Around June 2003, at the same time, the Defendant 15 Company 15 Company 15 Company 15 Company 1, who was a KOSDAQ-listed corporation in the web-based business development and distribution business, was consolidated into Nonindicted Co. 7 Company 2006 and its trade name was changed to “Nonindicted Co. 3 Company.” On or around December 4, 2007, the Defendant transferred all of the web-based program development and sales sector and the game sector to another company, separated and transferred both of the web-based program development and distribution sector and the game sector to another company, and eventually, the Defendant took the same result as directly listed Nonindicted Co. 7 Company 7 Company 1. However, the Defendant had been engaged in the main business of travel and distribution since the 1980s, and had been promoting the listing of Nonindicted Co. 7 Company 15 Company from the beginning.

㉳ 피고인은 서둘러 합병을 할 특별한 사정이 없음에도 불구하고 합병을 통한 우회상장으로 인하여 의제증여세가 부과될 수 있는 공소외 7 주식회사 주식 증여일로부터 3년의 기간을 경과하기까지 불과 2개월을 앞두고 공소외 7 주식회사를 합병한 것을 보더라도, 피고인에게는 처음부터 공소외 7 주식회사의 우회상장으로 인한 의제증여세를 포탈할 범의가 없었다고 주장하지만, 위에서 본 바와 같이 피고인이 2003년 9월경 자녀들에 대한 공소외 7 주식회사 차명주식 증여사실을 은닉하는 행위를 한 후 2006년경에 실시된 피고인 자녀들의 2003년 9월경의 공소외 7 주식회사 주식 저가양수에 관한 세무조사와 2009년 실시된 피고인의 자녀 공소외 14의 2003년 9월경 공소외 7 주식회사 주식취득자금출처에 관한 세무조사에 이르기까지 피고인의 자녀들에 대한 공소외 7 주식회사 차명주식 증여사실이 밝혀지지 아니하였고, 이 사건 검찰수사에서 비로소 피고인의 차명주식 증여사실이 밝혀진 점에 비추어 보면, 위와 같은 사정만으로는 앞서 본 사정들을 모두 배척하고 피고인의 의제증여세 포탈범의를 부정할 여지가 있다고 할 수 없다.

(d)the calculation of evaded tax amount;

According to the legal principles as seen earlier, the amount of gift tax evaded by the defendant [the amount per share is KRW 9,089, KRW 70 per stock] 14,217, KRW 42,918, KRW 740 per share of Nonindicted Co., Ltd. 70, KRW 700, KRW 306, KRW 400, KRW 700, KRW 470, KRW 67, KRW 306, KRW 47, KRW 406, KRW 47, KRW 40, KRW 67, KRW 30, KRW 47, KRW 60, KRW 47, KRW 40, KRW 47, KRW 60, KRW 47, KRW 30, KRW 47, KRW 47, KRW 60, KRW 30, KRW 48, and KRW 47, KRW 97, KRW 48, and KRW 40, KRW 37,000.

If the Defendant’s children were to receive new shares bypassing the issuance of new shares on December 26, 2003, the public prosecutor calculated the taxable value per share of 12, in consideration of the fact that the acquisition price of new shares was 5,00 won per share, 33,374 won for Nonindicted 11, and 33,38 won for the acquisition of new shares bypassing the issuance of new shares on December 26, 200, the public prosecutor calculated the value of 1000 won per share of 200 new shares, 3,000 won for 30,000 won for 40,000 won for 10,000 won for 20,000 won for 20,000 won for 30,000,000 won for 30,000,000 won for 10,000,000 won for 30,000,000 won for 14,00.

E) The establishment of the Defendant’s act of evading gift tax through a bypass listing through a merger around July 2006

Ultimately, in 2003, the Defendant donated the borrowed stocks of Nonindicted Co. 7 to his children and concealed them, and then made a bypassing listing of Nonindicted Co. 7 through a merger with Nonindicted Co. 15, a KOSDAQ-listed corporation, around July 2006, around 3 years thereafter, and as long as it is clear in the calculation of the profits that the Defendant deemed to have donated to his children through the bypass listing exceeds the standard prescribed by the Presidential Decree, the Defendant could be recognized to have evaded the gift tax amounting to 5,626,270,683 won in total through the bypass listing of the merger around July 2006.

2) Determination as to the Defendant’s evasion of capital gains tax due to the transfer of borrowed stocks in 2006

In order to recognize the Defendant’s act of evading capital gains tax due to the transfer of borrowed stocks in 2006, “Fraud or other unlawful act”, i.e., deceptive scheme or other unlawful act that makes it impossible or considerably difficult to impose and collect taxes, and according to the evidence duly adopted and investigated by the lower court, the lower court acknowledged the fact that the Defendant did not report and pay capital gains tax for the transfer margin until May 31, 2007, even though the Defendant, a corporation listed on KOSDAQ, owns 3% or more of the stocks of Nonindicted Co. 3, a corporation listed on the KOSDAQ, together with a specially related person, or the total market value of the stocks owned is at least 10 billion won, from August 6, 2006 to December 15, 2006, as indicated in attached Table 4-1, 4-2, and from August 15, 2006.

However, the above borrowed stocks are new stocks allocated as a result of the merger between Nonindicted Co. 7 and Nonindicted Co. 3 with respect to the borrowed stocks held in the name of executives and employees from the time when the Defendant established and operated Nonindicted Co. 7. However, insofar as there is no evidence to support that the Defendant held stocks in the name of a tea for the purpose of evading capital gains tax from the beginning after January 1, 1999 when Article 94 subparag. 3 of the former Income Tax Act (amended by Act No. 5580, Dec. 28, 1998), which was the capital gains tax regulation on listed stocks, (i) since January 1, 1999, since the enforcement of Article 94 subparag. 3 of the former Income Tax Act (amended by Act No. 5580, Dec. 28, 1999), it is difficult to view that the Defendant sold the borrowed stocks in the name of the next stockholder without converting the stocks held in the name of the former Nonindicted Co. 7 Co. 3 into the real name.

Therefore, it cannot be recognized that the defendant evades the transfer income tax due to the transfer of borrowed stocks in 2006 by committing fraud or other unlawful acts.

3) The establishment of a crime of violation of special law (tax) by the Defendant’s constructive gift tax evasion

Even if the Defendant’s act of evading capital gains tax following the transfer of borrowed stocks in 2006 does not constitute an act of evading capital gains tax, as seen earlier, insofar as the Defendant’s constructive gift tax evasion amount due to a bypass listing in July 2007, which came up to 5,626,270,683 won in total, exceeds the amount stipulated in Article 8(1)1 of the former Act, the Defendant’s act of evading capital gains tax due to a bypass listing in July 2006 constitutes a crime of violating special laws (tax) due to the act of evading gift tax due to a bypass listing through a merger in July 2006.

(e) Sub-decisions

Therefore, the defendant's violation of special law due to the evasion of gift tax due to the donation of borrowed stocks (tax) around September 2003 and violation of special special law due to the evasion of gift tax due to the bypassing listing through a merger around July 2006 shall be dismissed, and the defendant's violation of special law due to the offering of stocks on December 26, 2003 (tax) shall be acquitted. Since the defendant's evasion of transfer income tax due to the transfer of borrowed stocks in 2006 is acquitted, the defendant's refusal of transfer income tax due to the transfer of borrowed stocks in 2006 shall be dismissed, and the defendant's refusal of transfer income tax due to the transfer of borrowed stocks in 206 shall be dismissed, and without making a separate judgment as to the act of evasion of gift tax due to the donation of borrowed stocks in September 2003, the court below erred by misapprehending the legal principles on the remaining violation of special law (tax) except the above act of evasion of transfer income tax, or by misunderstanding the facts charged.

(3) As to the assertion of misunderstanding of facts and misapprehension of legal principles as to fraudulent illegal transactions

(A) Relevant legal principles

Article 188-4 (4) 2 of the former Securities and Exchange Act prohibits “an act of seeking money or other economic benefits by falsely indicating important matters in connection with the sale and purchase or other trading of securities or by inducing misunderstanding of other persons by using documents in which necessary facts are omitted.”

The prohibition of fraudulent unfair trading under Article 188-4 (4) of the former Securities and Exchange Act is aimed at protecting individual investors' interests in securities trading and protecting investors' trust in the general securities market, thereby contributing to the development of the national economy. As such, whether the securities market is an act related to the trading of securities, etc., whether it is false or not, and whether it seeks to acquire unfair profits or economic profits, etc., shall be determined by objective criteria, comprehensively taking into account the status of the offender, the status of the issuing company, the management status of the issuing company, the situation of the share price, the situation before and after the act, and all the circumstances before and after the act, etc. In light of the above purpose of the Securities and Exchange Act and the legislative intent of the above provision, unfair profits under the above provision are not limited to the individual and tangible economic interests of the offender due to the disposal of securities, and it shall include not only passive and active profits such as the acquisition of management rights, the securing of control rights of the company, the increase of status within the company, but also passive profits such as the occurrence of losses (see Supreme Court Decision 20036Do16384.).

Meanwhile, the term “material fact” under Article 188-4(4)2 of the former Securities and Exchange Act means a fact that is identical to “material information not disclosed to the general public” under Article 188-2(2) of the same Act, which is a provision prohibiting the use of undisclosed information, that may have an impact on investors’ investment judgment, as a matter of significant impact on the property and management of the pertinent corporation or as necessary for fair trade in securities and the protection of investors. In addition, it does not merely mean an act of failing to correct a false or defective document already disclosed through a securities futures trading office, but it does not mean an act of actively using such document in a way that reports, etc. false or defective documents to the Korea Securities and Exchange (see Supreme Court Decision 2009Do3749, Jul. 29, 2009) with the knowledge that there is a situation in which the document may cause misunderstanding of matters that may affect investors’ investment judgment, and thus, it may be included in the act of using documents as stipulated in the said Article (see Supreme Court Decision 2009Do13749, Jul. 29, 2009, 2009).

(B) Determination

First, as stated in the judgment below, the Defendant’s failure to enter the fact of holding the borrowed stocks in the merger report, the report on the change of the largest shareholder, and the report on the stocks owned by executive officers and major stockholders constitutes an act of making a false representation concerning the important matters under Article 188-4(4)2 of the former Securities and Exchange Act or omitting the necessary fact.

However, in light of the above legal principles as to fraudulent illegal transactions, it is insufficient to recognize that the defendant attempted to gain monetary profits by inducing misunderstanding of another person by falsely stating the details of holding shares in the merger report, the report on the change of the largest shareholder, and the report on the holding of stocks owned by executives and major shareholders, and thus, the judgment of the court below which acquitted the defendant of this part of the facts charged is just, and there is no error of law by misunderstanding of facts or misunderstanding of legal principles as alleged in the

(4) As to the assertion of mistake of facts as to the manipulation of market price on September 7, 2006

(A) Relevant legal principles

Article 30 of the Criminal Act provides that two or more persons jointly commit a crime. In order to establish a joint principal offender, a subjective element is the intention and objective requirement of joint processing, and requires the fact of implementation of a crime through functional control based on a joint doctor. The intention of joint processing is insufficient to recognize another person’s crime and to accept it without restraint, and it is not sufficient to jointly commit a specific criminal act with another person’s intent, and to shift one’s own intent by using another person’s act to implement a specific criminal act (see Supreme Court Decision 2002Do7477, Mar. 28, 2003).

(B) Determination

In light of the above legal principles as to co-principals and the circumstances stated in the judgment below, it is difficult to recognize that the defendant actively participated in the crime of violation of the Securities and Exchange Act by the manipulation of Non-Indicted 5 as a co-principal, and has a functional control over his own intent. Thus, the judgment of the court below which did not recognize the establishment of co-principals as to the crime of violation of the Securities and Exchange Act by the manipulation of market price on September 7, 2006 against the defendant is just, and there is no error of misconception of facts or misapprehension of legal principles as argued by the prosecutor

3. Conclusion

A. Judgment of the court below is reversed and dismissed

Therefore, the part of the judgment of the court below concerning the violation of the Special Act on the Aggravated Punishment, etc. of Specific Crimes should be reversed ex officio. Since this part of the judgment below and the guilty part of the judgment of the court below which are concurrent crimes under the former part of Article 37 of the Criminal Act cannot be maintained, without examining the grounds for appeal of unfair sentencing by the defendant and prosecutor, the part concerning the violation of the Special Act on the Aggravated Punishment, etc. of Specific Crimes (tax) and the guilty part of the judgment of the court below shall be reversed, and the following decision shall be made through the pleadings. The prosecutor's appeal against the violation of the Securities and Exchange Act due to unfair trade among the judgment of the court below, the violation of the Securities and Exchange Act due to price manipulation on September 7, 2006, and the violation

B. Scope of the judgment on the violation of the Special Act (tax) after the reversal of the judgment below

Of the facts charged as to the violation of the Act on the Aggravated Punishment and Gift Tax in the trial of the political party, the part concerning the defendant's evasion of gift tax and constructive gift tax among the facts charged as to the violation of the Act on the Aggravated Punishment and Gift Tax. On September 26, 2003, the part concerning the defendant's evasion of gift tax and constructive gift tax were added to the ancillary facts charged as concurrent crimes by adding the charges concerning the violation of the Act on the Aggravated Punishment and Gift Tax due to the evasion of gift tax through the merger around July 2006 and the violation of the Act on the Aggravated Punishment and Gift Tax due to the Violation of the Aggravated Punishment and Gift Tax due to the Act on the Aggravated Punishment and Gift Tax due to the Violation of the Aggravated Punishment and Gift Tax due to the Act on the Aggravated Punishment and Gift Tax due to the Violation of the Aggravated Punishment and Gift Tax due to the Aggravated Punishment on July 26, 2003; the defendant's violation of the Aggravated Punishment and Gift Tax due to the Aggravated Punishment and the Aggravated Punishment due to the Aggravated Punishment on July 2000 of the Aggravated Punishment.

However, as seen earlier, inasmuch as three crimes of the Defendant’s violation of the Aggravated Punishment Act due to the evasion of gift tax due to the donation of borrowed stocks (tax) around September 2003 and the violation of the Aggravated Punishment Act due to the evasion of gift tax due to the increase of stocks issued on December 26, 2003 and the violation of the Aggravated Punishment Act due to the transfer of borrowed stocks on or around July 2006 and the violation of the Aggravated Punishment Act due to the evasion of gift tax due to the transfer of borrowed stocks (tax) are in concurrent crimes, the Defendant’s violation of the Aggravated Punishment Act (tax) can not be accepted as to the following charges: on or around September 26, 2003, the Defendant’s violation of the Aggravated Punishment Act (tax) and the violation of the Aggravated Punishment Act due to the evasion of gift tax due to the transfer of stocks issued on or before July 26, 2006.

However, even if the Defendant was excluded from the act of evading gift tax through capital increase with capital increase on December 26, 2003 in the conjunctive facts charged, as long as the act of evading gift tax differs from other tax evasions and the time of acceptance, a separate special special case law violation (tax) is established as long as it is possible to revoke the public prosecution pursuant to Article 255(1) of the Criminal Procedure Act (it does not constitute withdrawal of the facts charged, since it does not constitute a concurrent crime with other tax evasions, it does not constitute withdrawal of the facts charged). As seen above, even if the primary facts charged are not accepted and only the conjunctive facts charged are subject to adjudication, it is necessary to make a separate judgment as to the establishment of the crime of violating the special special special case law (tax) due to the act of evading gift tax with capital increase with capital increase with respect to December 26, 2003.

Criminal facts

The Defendant, a KOSDAQ-listed corporation, was the “Nonindicted Co., Ltd. 3” and its trade name was changed to “Nonindicted Co. 24” on June 13, 2003, and “Nonindicted Co. 25” on March 24, 2006, and merged Nonindicted Co. 7 on July 3, 2006 after the last change to “Nonindicted Co. 3” on May 18, 2006. Nonindicted Co. 7 was the first trade name “Nonindicted Co. 26” on December 31, 1983; Nonindicted Co. 26 was changed to “Nonindicted Co. 37”; Nonindicted Co. 3, a non-listed corporation on July 29, 2004; and both Nonindicted Co. 3 and Nonindicted Co. 4 were dissolved to “Nonindicted Co. 3, a non-listed corporation” on July 28, 2005 (hereinafter “Nonindicted Co. 36, etc.”).

1. Violation of the Aggravated Punishment Act;

The Defendant, while holding office as the representative director of Nonindicted Co. 7, attempted to directly list Nonindicted Co. 7, a major affiliate of ○○ Group from around 2001 to around 2003, to the KOSDAQ market. However, it was difficult for Nonindicted Co. 7 to directly list on the KOSDAQ because it falls short of the listing qualification requirements due to excessive payment guarantee for Nonindicted Co. 18, Nonindicted Co. 6, etc., aggravation of the profitability of travel industry, etc.

On the other hand, around early 2003, Nonindicted Co. 7 owned 263,957 shares in the name of 114,60 shares in the name of the defendant himself and 10 employees of Nonindicted Co. 30, the representative director of Nonindicted Co. 31 and Nonindicted Co. 17, a major shareholder, and owned 263,957 shares in the name of 10,357 shares, and owned 30,000,000 shares of the above Co. 7.

Since the Defendant, while holding office as the representative director of Nonindicted Co. 7, owned most of the shares issued by the said company in the name of the principal, executive, and employee, Nonindicted Co. 7 was a result of holding most of the shares issued by the said company when Nonindicted Co. 7 success in the bypass listing, and if disposing of them, the Defendant could be seen as a large listing profit.

In early 2003, the Defendant was trying to take over a KOSDAQ-listed corporation for the purpose of the bypass listing of Nonindicted Co. 7. On June 13, 2003, the Defendant acquired the management right of Nonindicted Co. 15 (mutual change to Nonindicted Co. 25 on March 24, 2006 after acquiring the management right) which was a KOSDAQ-listed corporation that had not been normally managed due to the dispute between major shareholders and not good management conditions.

On the other hand, the Defendant, who held most of the shares of Nonindicted Co. 7 in the name of officer and employee, was in the order of consideration to Nonindicted Co. 14, 11, and 12, who were their children. In the event that the shares of Nonindicted Co. 7 were kept in the name of officer and employee at that time, it was anticipated that a large amount of taxes will be imposed by the tax authority due to large listed gains if the shares are transferred from the Defendant to the Defendant in the order of their children according to normal procedures, such as conversion of the name of the vehicle, transfer of the shares to the Defendant from the name of the next shareholder, and transfer of the shares from the Defendant to the Defendant in the order of their children.

In order to avoid this, the Defendant transferred most of the shares held by executive officers and employees to his/her children prior to the listing process, but without going through the real name conversion process with the Defendant from the next-name shareholders, the next-name shareholders would make sure that the next-name shareholders would sell the shares to the third party of the Defendant and illegally donate property to their children, and some of the borrowed-name shares held in the name of executive officers and employees would continue to be held in the next name.

(a) Gift tax evasion;

Around November 1, 2002 and around November 26, 2002, the Defendant sold KRW 2132 to Nonindicted Co. 32, etc. total amount of KRW 10.3 billion, the Defendant deposited KRW 1.816 billion out of the sales price of stone in Nonindicted Co. 12’s deposit account, as well as KRW 1.77 billion, KRW 1.6 million in the amount of money in order to pretend that the Defendant’s children had funds to acquire the stocks of Nonindicted Co. 7, the Defendant deposited KRW 1.81 billion in the amount of money in the account of Nonindicted Co. 11’s deposit account, and KRW 1.6 billion in the amount of money in the account of Nonindicted Co. 14.

As of September 2003, Nonindicted 14 was studying in the United States as student status. Nonindicted 11 returned to Korea from the United States around the end of 2002 and went through management classes since he was employed by Nonindicted 7 corporation as of January 1, 2003. Nonindicted 12 also did not have any separate income in addition to his use. Nonindicted 14, 11, and 12 entrusted the Defendant with all of the head of Tong and his seal imprint.

The Defendant had Nonindicted 17, a person in charge of funds, manage Nonindicted 14, 11, and 12’s passbooks and seals, and has been acting on behalf of the Defendant for all legal acts such as the exercise of property rights, including various tax payments related to the transfer of stocks of the said three persons.

Around September 25, 2003, the Defendant paid KRW 13,500 per share of Nonindicted Co. 7 Co. 14 in Jung-gu in Seoul, and the appraised value under the Inheritance Tax and Gift Tax Act per share of Nonindicted Co. 27 Co. 1 calculated by requesting the Defendant to an accounting firm for KRW 37,320, and pretended to sell the shares held in the name of executives and employees of Nonindicted Co. 7 to its children, and made Nonindicted Co. 17 in excess of the amount of KRW 13,50 per share. Nonindicted Co. 33 did not make a false sales contract to KRW 14,50 per share of KRW 14,00,00, KRW 140 per share of Nonindicted Co. 7 Co. 14, KRW 140, KRW 1400 per share, KRW 300 per share of KRW 14,00 per share of KRW 300, KRW 400 per share of KRW 14,00 per share.

Accordingly, the Defendant evaded gift tax of KRW 1,380,924,480, as shown in the attached list 2-1 by fraud or other unlawful means.

(b) Evasion of deemed gift tax; and

On July 3, 2006, the Defendant: (a) merged Nonindicted Co. 7 with Nonindicted Co. 25 on July 3, 2006, which was within three years from the date on which Nonindicted Co. 12, 11, and 14 donated the shares of Nonindicted Co. 7; (b) issued 20.5084 shares for each share of the shares of Nonindicted Co. 7; (c) issued 20.5084 shares for each share of the shares of Nonindicted Co. 7; (d) accordingly, Nonindicted Co. 12, 11, and 14, the shareholders of Nonindicted Co. 7 were issued 615,254 shares, 902, 373 shares, 705,492 shares for each of the shares of Nonindicted Co. 3; and (e) the amount was the total of 14,012,541, and 368 won as indicated in the attached Table 3-3 of the date of the crime.

Defendant, as described in the preceding paragraph, donated shares to Nonindicted 12, 11, and 14, who were children, in September 2003 by fraud or other unlawful means, and did not report KRW 14,012,541,368 until January 3, 2007, since the value of said shares exceeds 500 million won or more than 30% as a result of a bypass listing through a merger, and the value of said shares was increased by a bypassing listing through a merger.

Accordingly, the Defendant evaded the constructive gift tax of KRW 5,626,270,683 in total as shown in the attached list 3-3 by fraud or other unlawful means.

2. Violation of the Securities and Exchange Act due to market price manipulation;

No person shall make, independently or in collusion with other persons, transactions in the securities market or the KOSDAQ market in order to attract anyone to make transactions, creating a false or misleading appearance of active trading or creating a change in the market price.

On October 15, 2006, at a music meeting held by the Defendant, the Defendant announced to contribute 1,105,000 shares of Non-Indicted 3 Co. 3 Co., Ltd. to the meeting at the location of the residence.

Accordingly, with the aim of preventing the decline in stock prices and inducing transactions, the Defendant had Nonindicted Co. 9, Nonindicted Co. 10, etc., an affiliate company, and Nonindicted Co. 3 Co., Ltd. undergo manipulation orders such as high-priced purchase orders and paper capital, etc. on the stocks of Nonindicted Co. 3, thereby gaining profits by artificially preventing the decline in stock prices.

(a) Price manipulation from October 9, 2006 to October 26, 2006;

On October 2006, the Defendant purchased the shares of Nonindicted Co. 3 with the funds of Nonindicted Co. 9 and instructed Nonindicted Co. 19 to prevent the decline of the share price by purchasing the shares of Nonindicted Co. 3 with the funds of Nonindicted Co. 9.

At around 14:47 October 9, 2006, Nonindicted 19 submitted an order for high-priced purchase of 100 won per share of 50 won in the name of Nonindicted 9,090 won per share, which is higher than the immediately preceding and relative purchase price, at the Doro-dong, Gangnam-gu Seoul Metropolitan Government branch, to enter into the said contract, and concluded the contract, thereby raising the market price of the shares from 8,040 to 8,090 won. In addition, as stated in the attached list 5-1 through 5-6, as shown in the attached list of crimes, Nonindicted 19 artificially purchased orders from October 9, 2006 to October 26, 2006, 105 times in total, including order for high-priced purchase, and 3333 times in total, and 138,599 shares per share (as the average market price increase of 8.2% per share).

(b) Price manipulation from July 3, 2008 to November 28, 2008;

On July 2008, the Defendant purchased the shares of Nonindicted Co. 3 with the funds of related companies, such as Nonindicted Co. 9 and Nonindicted Co. 10, and directed Nonindicted Co. 19 to prevent the decline of the share price.

공소외 19는 2008. 7. 3. 11:24경 서울 서초구 ☆☆빌딩에 있는 공소외 9 주식회사 사무실에서 홈트레이딩 시스템을 이용하여 ◐◐◐◐◐증권 연희동지점에 개설된 공소외 9 주식회사 명의 계좌를 통해 직전가 대비 30원, 상대호가 대비 35원이 높은 주당 4,285원에 10,000주의 고가매수주문을 제출함으로써 동 주식의 시세를 4,255원에서 4,285원까지 30원 상승시킨 것을 비롯하여 그때부터 2008. 11. 28.까지 별지 범죄일람표 6, 7, 8, 9 기재와 같이 공소외 9 주식회사, 공소외 10 주식회사, 공소외 11, 12 명의의 5개 계좌를 이용하여 고가매수주문 413회, 허수매수주문 24회, 종가관여매수주문 35회, 주가하락방어매수주문 544회 등 총 1,016회에 걸쳐 817,026주에 대하여 시세조종매수주문(호가관여율 평균 6.93%)을 제출함으로써 유가증권의 매매거래가 성황을 이루고 있는 듯이 잘못 알게 하거나 공소외 3 주식회사 주가를 인위적으로 상승시키는 매매거래를 하였다.

3. Violation of the Securities and Exchange Act due to a violation of reporting obligation, such as stocks held;

A person who holds not less than 5% of stocks of a KOSDAQ-listed corporation shall report the changes in the holding status and purpose of holding, and the holding ratio to the Financial Supervisory Commission and the Korea Securities Futures Exchange within five days from the date on which such changes are made in excess of 1% of the total number of stocks, etc. of the relevant corporation

However, on July 6, 2006, the Defendant submitted to the Financial Supervisory Commission and the Korea Securities and Futures Exchange a “report on the holding of stocks, etc.”, and omitted the entry of the name shares 1,590,636 shares (93% of the total shares) held by the Defendant in the name of 23 executives or employees, including Non-Indicted 34, and made a false entry as if he/she owns only 3,692,810 shares under his/her real name.

From that time until January 8, 2008, the Defendant did not include the borrowed stocks owned by the Defendant at least nine times in total, as stated in the attached Table 10 of the Crimes List, and prepared a false report on the holding situation of stocks, etc., and did not report it to the Financial Supervisory Commission and the Korea Securities Futures Exchange, or did not report the changes.

4. Violation of the Securities and Exchange Act due to violation of reporting obligation on stock ownership;

An officer or a major shareholder of any KOSDAQ-listed corporation shall report to the Securities and Futures Commission and the Korea Securities and Futures Commission within 10 days from the date on which he becomes an officer or a major shareholder, regardless of in whose name the shares held by him, and, if there is a change in the number of shares held by him, the details thereof shall be reported to the Securities and Futures Commission

However, on August 8, 2006, the Defendant reported the ownership status of Nonindicted Co. 3 through the Financial Supervisory Service’s electronic publication system on August 8, 2006, and omitted the entry of the name shares 1,590,636 shares (9.93% of the total shares) held by the Defendant in the name of 23 executives and employees, such as Nonindicted Co. 34, and falsely stated as if he owns only 3,692,810 shares under his real name.

In addition, even though the Defendant sold 471,343 shares of the borrowed-name shares as of August 9, 2006, including the sale of 137 shares among the above borrowed-name shares, and did not make a report on the change in the situation of the stocks held by the Defendant at all until March 9, 2008, the Defendant did not include the borrowed-name shares owned by the Defendant 19 times in total from August 10, 2006 to April 10, 2008, and did not report the change in the situation of the stocks held by the Securities and Futures Commission and the Korea Securities and Futures Exchange.

Summary of Evidence

【Paragraph 1 of this Article】

1. Partial statement of the defendant;

1. The legal statement of the witness of the court below, Nonindicted 19 and 17

1. Partial statement of each prosecutor's protocol of examination of the defendant against the defendant;

1. The entry of the part of the prosecutor’s protocol on Nonindicted 19 (excluding each part which was not adopted as evidence from among the evidence in Articles 87, 143, 191, 210, and 228), and Nonindicted 31, 35, 36, 12, 11, 14, and 37 in each prosecutor’s protocol on Nonindicted 17

1. Each statement of Nonindicted 19, 35, 38, 39, 33, 40, 41, 17, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, and 52

1. 업무협조(주주변동사항확인) 의뢰 및 회신 - 공소외 3 주식회사, 공소외 7 주식회사의 주주변동사항, 수사보고( 공소외 15 주식회사 기타 주요경영사항에 대한 공시 첨부 보고), 기타 주요경영사항에 대한 공시(2003. 3. 21.자) 1부, 수사보고( 공소외 15 주식회사 기타 주요경영사항 및 정기주주총회 결의사항 공시 첨부 보고), 기타 주요경영사항에 대한 공시 1부, 수사보고( 공소외 15 주식회사 공개매수신고서 및 가처분신청 관련 공시내용 첨부 보고), 수사보고( 공소외 15 주식회사 경영권변동 관련 공시내용 첨부 보고), 수사보고( 공소외 24 주식회사의 보유주식 변동 관련 공시내용 첨부보고), 수사보고( 공소외 24 주식회사의 상호변경 관련 공시내용 첨부 보고), 주식 등의 대량보고상황보고서 3부, 수사보고( 공소외 7 주식회사 지분변동 추이 보고), 공소외 7 주식회사 지분변동 추이(국세청 자료) 1부, 업무협조(개인 세금납부내역 확인) 의뢰 및 회신, 납부세금에 대한 과세대상자료 요청 및 회신, 2003. 9. 공소외 7 주식회사 주식양수도 내역서, 수사협조(양도세신고서 사본 등 제출) 의뢰 및 회신, 수사보고(금융계좌추적결과 및 공소외 12, 14, 11 주식취득내역 종합), 공소외 7 주식회사주식 양수도내역서, 공소외 14, 12, 11 공소외 7 주식회사 주식 양수도내역, 서울중앙지방법원으로부터 발급받은 공소외 41 등 차명계좌주로 의심되는 8명에 대한 금융계좌추적 영장 입출금자원 추적결과표 1부, 공소외 14, 12, 11 공소외 7 주식회사 주식 금융계좌 발췌본 1부, 수사보고( 공소외 3 주식회사 자금담당 공소외 17 이사 자금현황표 및 서울지방국세청장 명의 세무조사 사전통지서 관리사실 확인 - 첨부 : 자금현황표, 사전통지서 사본), 각 압수조서, 수사보고( 공소외 12, 11, 14 통장사본 첨부), 공소외 12 △△은행통장사본 2부, 공소외 11 ▽▽은행통장사본 1부, 공소외 14 ◎◎은행통장사본 2부, 수사보고( 공소외 12의 급여통장 및 사본 첨부), 수사보고( 피고인 통장사본 첨부), 수사보고( 공소외 40 보관 피고인 차명주주 관리 자료 확인), 공소외 7 주식회사 의제배당산정표사본 1부, 공소외 7 주식회사 의제배당산정표사본 6부, 2006. 11. 24. 현재 차명주식 처분 지출표 및 주식처분현황표사본 각 1부, 2006. 10. 19. (차명) 주식처분현황표사본 1부, 증여세계산 및 납부세액 계산내역서사본 2부, 의제배당 관련 문건 사본 1부, 공소외 7 주식회사 의제배당산정표사본 6부, 순손익계산서, 순자산가액계산서, 평가차액계산명세서, 영업권평가조서사본, 증여세 계산 및 납부세액 계산내역 각 1부, 납세고지서, 증여세 결정결의서, 결정내용서사본 46부, 수사보고( 공소외 19 보관 차명부부 증권카드 확인보고), 수사보고( 공소외 17의 자금현황 첨부), 04. 1. 31.자 자금현황표사본, 93. 3. 3. - 05. 12. 31. 자금현황표사본, 최대주주 또는 주요주주 변경서, 자금현황표 2부, 공소외 11 통장거래내역서, 공소외 12 통장거래내역서, 공소외 14 통장거래내역서, 수사보고( ◁◁ 석물거래내역 제출) - 석물거래내역서, 증여세 계산구조 문건, 주식평가실무, 공소외 7 주식회사 증여세 계산( 공소외 19 작성) 문건, 합병상장과세(41조5) 계산문건( 공소외 19 작성), 기업가치 증가분( 공소외 19 작성), 공소외 3 주식회사 주가추이 문건( 공소외 19 작성), 공소외 7 주식회사 취득원가 문건( 공소외 19 작성), 수사보고( 피고인의 차명증권 관련, 증권카드 및 도장 사진 첨부보고), 수사보고( 공소외 3 주식회사 및 공소외 7 주식회사의 주식변동상황명세서 첨부부고), 서울지방국세청 회신공문 1부, 주식 등 변동상황명세서 1부, 차명주식자 명단 및 진술서, 수사보고(석물 증여여부에 대한 분석보고), 성북세무서 자료제출요구사항 목록 문건 1부, 증여계약서사본 2부, 작품매매계약서사본 1부, 2003. 7. 5.자 공소외 15 주식회사 최대주주 또는 주요주주 변경공시 문건 1부, 공소외 17 작성 자금현황표사본 2부, ◁◁ 제출 석물매매내역서사본 1부, 자금현황표 사본, 공소외 36 관련, 피고인 차입금 현황표사본 1부, 수사협조의뢰에 대한 회신, 서울지방국세청장 명의의 공소외 7 주식회사 법인별 주주현황, 공소외 19 작성 공소외 3 주식회사 차명주식현황 문건 1부, 수사보고( 공소외 7 주식회사 우회상장 관련, 증여이익에 대한 증여세 계산자료 첨부보고), 수사보고( 공소외 7 주식회사 차명주식 증여 관련, 증여세 계산자료 첨부보고), 수사보고( 피고인 일가 개인자금 관련자료 첨부보고), 수사보고( ◁◁ 제출 석물거래내역 확인 및 증여계약서 허위작성 가능성 보고), ◁◁ 제출 석물매각 관련자료 1부, 수사보고(03. 9. 차명주식 양도 관련, 주식대금 반환내역 등 보고), 주식대금 입출금내역 정리표, 공소외 53, 54, 35, 36, 33, 38, 17, 39 각 거래내역서, 수사보고(03. 9. 차명주식 저가 이전 관련 세무조사 관련 자료 확인 - 성북세무서 자료 확인), 납세고지서, 결정조사내역사본, 증여세 과세표준과 세액의 계산명세서사본, 수사보고(03. 9. 차명주식 이전 관련 세무조사 관련 자료 확인 - 성북세무서 자료 확인), 성북세무서장 명의 증여세 과세혐의 자료통보 문건사본, 성북세무서장 명의 자료제출요구서/자료제출요구사항목록 사본 각 1부, 주식거래사실확인서 사본/주식 양도양수약정서, 수사보고(03. 9. 차명주식 이전 관련 세무조사 관련 자료 확인 - 서초세무서 자료 확인), 세초세무서장 명의 증여세 과세혐의자료 반송 문건 사본 1부, 성북세무서장 명의 증여세 과세혐의자료 통보 문건 사본 1부, 수사보고(성북세무서 세무조사 자료분석), 소명자료 검토보고서 사본 3부, 주주별 주식증감 현황조회서사본 9부, 증여세 과세혐의자료 반송 사본 1부, 증여세 과세혐의자료 통보 사본 1부, 자료제출요구서 사본 2부, 계좌 거래내역 조회서사본 3부, 연도별 주식취득현황 사본 1부, 공소외 14 입출금내역 사본 6부, 주식취득자금 원천소명자료 사본 1부, 주식거래사실확인서, 주식양수양도약정서 등 첨부서류 사본, (증여세)결정전통지서 및 관련자료 사본, 자금원천 서면확인에 따른 안내문 사본, (1999-2003)년 재산취득자금출처종합검토표 및 자금출처 서면검토대상자 자산소득명세서 사본의 각 기재

【Paragraph 2 of this Article】

1. Partial statement of the defendant;

1. The witness of the court below's partial statement of the court below 19, 55, 51, 56, and 57 and the witness of the court below's legal statement of non-indicted 58.

1. Partial statement of each prosecutor's protocol of examination of the defendant against the defendant;

1. The entry of the part of the prosecutor’s protocol on Nonindicted 51, 19 (excluding each part which was not adopted as evidence in the evidence in the evidence No. 87, 143, 191, 210, and 228), Nonindicted 57, 55, and 56, and the statement of each prosecutor’s protocol on Nonindicted 58

1. Some of the statements in the preparation of Nonindicted 51, 19, 57, and 55

1. (증권선물위원회) 처리의견서, 공소외 19 작성 공소외 9 주식회사의 공소외 3 주식회사 주식취득 내역 문건, 수사보고(시세조종과 공소외 3 주식회사 주가 변동 보고), 금융위 작성 공소외 3 주식회사 주식에 대한 불공정거래 조사결과 및 처리안, 녹취록(2006년 10월 9일부터 10월 23일까지) - 공소외 16 주식회사 도곡지점, 녹취록(2006년 10월 12일부터 10월 26일까지)- ♤♤♤♤증권 대치퍼스트지점, 녹취록(2008년 7월 11일부터 10월 24일까지) - ◈◈증권 명동지점, 녹취록(2008년 9월 29일부터 11월 25일까지) - 공소외 16 주식회사 도곡지점( 공소외 11 명의 계좌 관련), 녹취록(2008년 11월 27일부터 11월 28일까지) - 공소외 16 주식회사 도곡지점 ( 공소외 12 명의 계좌 관련)의 각 기재

[Article 3, 4]

1. Defendant's legal statement;

1. The statement made by each prosecutor on Nonindicted 19 (excluding each part not adopted as evidence among the evidence under Articles 87, 143, 191, 210, and 228) and Nonindicted 17

1. Each entry in the statement of the status of the Defendant’s vehicle sales, the status of the purchase of shares, the status of the purchase of shares, the investigation report (report on the status of the principal shareholder and the status of the ownership of shares), the major management issues on July 3, 2006 and the change of the largest shareholder-report on July 3, 2006, respectively.

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

(a) The point of tax evasion (paragraph (1) of the crime committed on the basis of sale):

Article 8(1)1 and (2) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (Amended by Act No. 9919, Jan. 1, 2010); Article 9(1) of the former Punishment of Tax Evaders Act (Amended by Act No. 8138, Dec. 30, 2006); Article 9(1) of the former Punishment of Tax Evaders Act (Amended by Act No. 8138, Dec. 30,

(b) The point of market price manipulation (paragraph (2) of the crime committed on the market price):

Articles 207-2(1)2 and 188-4(2)1 of the former Securities and Exchange Act (amended by Act No. 8635 of Aug. 3, 2007 and repealed by Article 2 of the Addenda to the Financial Investment Services and Capital Markets Act, which was enforced February 4, 2009):

(c) The fact that stocks are held in bulk and changes therein violate the duty to report (paragraph (3) of the crime committed on the market);

Articles 210 subparagraph 5-2 and 200-2 (1) of the former Securities and Exchange Act (amended by Act No. 8863 of Feb. 29, 2008) (each of the imprisonment options)

(d) Violation of a duty to report the ownership of stocks (Article 4 of the crime at the time of sale):

Articles 210 subparag. 5 and 188(6) of the former Securities and Exchange Act (amended by Act No. 8904 of Mar. 14, 2008) (excluding the remainder on April 10, 2008; each imprisonment option); and Article 210 subparag. 5 and Article 188(6) of the former Securities and Exchange Act (amended by Act No. 8635 of Aug. 3, 2007 and promulgated by Act No. 2 of the Addenda to the Financial Investment Services and Capital Markets Act (amended by Act No. 8904 of Apr. 10, 2008); and

1. Aggravation for concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act; Article 50 of the former Punishment of Tax Evaders Act (Amended by Act No. 9919, Jan. 1, 2010); Article 1-2 (1) of the former Punishment of Tax Evaders Act (Amended by Act No. 9919, Jan. 1, 2010); 1-2 (3) of the Act on the Aggravated Punishment, etc. of Specific Crimes (limited to both penalties and fines

1. Discretionary mitigation;

Articles 53 and 55(1)3 and 6 of the Criminal Act

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Suspension of execution;

Article 62 (1) and (2) of the Criminal Act (limited to Imprisonment)

Grounds for sentencing

It is clear that the defendant not only did not disclose the status of the borrowed stocks as the largest shareholder of the KOSDAQ-listed corporation, but also caused the possibility of undermining the fair trade order in the capital market and causing unexpected damages to the general investors by getting out of the market price manipulation. It is obvious that there is a circumstance under which punishment can not be somewhat imposed, such as the defendant's name that the evaded tax amount was considerably infringed on the fair tax imposition and collection function of the country by getting out of the name of 7 billion won.

However, there are extenuating circumstances, such as the fact that there is no history of criminal punishment; the purpose of the manipulation is primarily high in the amount of contribution in calculation; or that the operator of any KOSDAQ-listed corporation was trying to stabilize the prices of outstanding stocks due to the financial crisis; and there are also extenuating circumstances, such as the Defendant’s donation of property, such as real estate or stocks, owned by himself/herself to universities or social organizations and making efforts to develop culture and sports in a large number of times during a series of times, and that he/she has donated to the State and society for the development of culture and sports. Such circumstances and the Defendant’s age, character and conduct, together with various sentencing factors indicated in the records of this case

Parts of innocence

1. The primary facts charged as to the evasion of gift taxes and constructive gift taxes among the facts charged as to the violation of special Acts;

A. Summary of the facts charged

The Defendant, while holding office as the representative director of Nonindicted Company 7, owned most of the shares issued by the said Company in the name of the principal, officers, and employees, and thus, if Nonindicted Company 7 success in the bypass listing of stocks, it would have resulted in the Defendant holding most of the shares of the said Company, and if disposing of them, the Defendant could have seen a big listing profit.

On June 13, 2003, the Defendant acquired the management right of Nonindicted Co. 15 (mutual change to Nonindicted Co. 25 on March 24, 2006, after acquiring the management right), which is a KOSDAQ-listed corporation, for the purpose of a bypass listing of Nonindicted Co. 7’s right.

The Defendant, most of the shares of Nonindicted Co. 7, which were held in the name of executive officers and employees, was transferred to Nonindicted Co. 14, 11, and 123, who were their children. In the event that Nonindicted Co. 7’s shares are kept in the name of executive officers and employees at that time, it was anticipated that a large amount of taxes will be imposed by the tax authority due to large listed gains if the shares are transferred from the Defendant to the Defendant in the real name or to the Defendant in the order of transfer of the shares from the following shareholders in accordance with normal procedures, such as conversion of the name of the vehicle, transfer of the shares to the Defendant, and transfer of the shares from the Defendant to the Defendant in the order of their children.

Accordingly, prior to the listing procedure, the Defendant transferred most of the shares held by the executives and employees to their children. However, without going through the real name conversion process from the next-name shareholders, the next-name shareholders would make sure that the next-name shareholders would sell the shares to the third party of the Defendant and illegally donate the property to their children, and some of the borrowed-name shares held in the name of the executives and employees would continue to be held in the next name.

The Defendant, around September 25, 200, at the office of Nonindicted Co. 7 in Jung-gu in Seoul, 200, paid KRW 14,00 per share to Nonindicted Co. 1 in the name of Nonindicted Co. 27, which the Defendant calculated by requesting an accounting corporation, was pretended to sell the shares held in the name of executives and employees of Nonindicted Co. 7 in KRW 13,50 per share, and was in excess of 13,50 per share, and Nonindicted Co. 17 in charge of the funds of Nonindicted Co. 27, which was 14 in the name of Nonindicted Co. 14, as if Nonindicted Co. 3 were to sell KRW 13,50 per share of KRW 14,00,00 per share to Nonindicted Co. 14, as if Nonindicted Co. 33 were to sell KRW 140,00 per share of KRW 140,00 per share, which was recorded in the name of Nonindicted Co. 14 in the register of shareholders.

On July 3, 2006, when the Defendant donated Nonindicted Co. 7’s shares to Nonindicted Co. 12, 11, and 14, the Defendant merged Nonindicted Co. 7 with Nonindicted Co. 25 Co. 20.5084:1 on July 3, 2006 (which issued 20.5084 shares for each share of Nonindicted Co. 7’s shares) (the trade name after the merger was referred to as “Nonindicted Co. 3”) and accordingly, Nonindicted Co. 12, 11, and 14, which were the shareholders of Nonindicted Co. 7’s shares, received 820,339 shares, 2,016,497 shares, 1,650,010 shares for each share of Nonindicted Co. 3’s shares, as indicated in the attached Table 3, the value thereof was the total amount of KRW 20,102,038,387 won as indicated in the attached Table 3.

Defendant, around September 2003, donated to Nonindicted 12, 11, and 14 a total amount of KRW 4,834,461,200 to Nonindicted 12, 11, and 14, and did not report KRW 20,102,038,38,387 until January 3, 2007, since the value of said shares increased by 500 or 30% due to bypass listing through a merger.

Accordingly, the Defendant evaded gift tax of KRW 10,124,803,660 as stated in the attached list 3-1 by fraud or other unlawful means.

B. Determination

Of the facts charged as to the violation of special Acts (tax), the primary charges on the evasion of gift tax and constructive gift tax are as follows: (a) the primary charges on the evasion of gift tax and constructive gift tax are as follows: (b) around September 2003 by the defendant for the same reason; (c) the violation of special Acts (tax) due to the evasion of gift tax due to the donation of borrowed stocks on or before December 26, 2003; and (c) the violation of special Acts (tax) due to the evasion of gift tax due to the transfer of borrowed stocks on or after July 2006; and (d) the violation of special Acts (tax) due to the evasion of gift tax due to the transfer of borrowed stocks on or after July 2006; and (e) the three crimes of violation of special Acts (tax) due to the evasion of gift tax and constructive gift tax due to the transfer of borrowed stocks are concurrent crimes; and (e) the primary charges on the evasion of gift tax and constructive gift tax do not constitute a crime of violating special Acts (tax).

2. Part of the ancillary charges concerning the evasion of legal fiction gift tax, among the charges concerning violation of the Act on the Aggravated Punishment

A. Summary of the facts charged

On July 3, 2006, when Nonindicted Co. 12, 11, and 14 donated Nonindicted Co. 7’s shares, the Defendant merged Nonindicted Co. 7 with Nonindicted Co. 25 Co. 20.5084:1 on July 3, 2006, which was within three years from the date on which the Defendant received the shares of Nonindicted Co. 7, and delivered 20.5084 shares for a merger of Nonindicted Co. 7’s shares (the trade name after the merger was referred to as “Nonindicted Co. 3”). Accordingly, Nonindicted Co. 12, 11, and 14, which were the shareholders of Nonindicted Co. 7, respectively, received 820,339 shares, 1,205, 89 shares, 94, 906 shares for a merger of Nonindicted Co. 3, as indicated in the attached list 3, the value was the total amount of KRW 20,102,3837 won.

Defendant, as described in the preceding paragraph, donated shares to Nonindicted 12, 11, and 14, who were children, in September 2003 by fraud or other unlawful means, and did not report KRW 20,102,038,38,387 until January 3, 2007, since the value of said shares exceeds 500 million or more than 30% of the value at the time of donation due to bypassing listing through a merger.

Accordingly, the Defendant evaded the constructive gift tax of KRW 8,671,019,180 in total as shown in the attached list 3-2 by fraud or other unlawful means.

B. Determination

In the facts charged as to the violation of the Act on the Aggravated Punishment, Etc., the conjunctive charges on the evasion of constructive gift tax shall be imposed in KRW 5,626,270,683 on the grounds as stated in the above 2.c. (2) (1) on the grounds of the same reasons. As such, the part of the facts charged in excess of the above shall be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, since there is no proof of a crime, it is a case where there is no proof of a crime. However, as long as the court found the guilty of the part of the facts charged in the preliminary charges, the judgment of innocence shall not be rendered separately.

3. The point of evading the transfer income tax due to the transfer of borrowed stocks in 2006 among the facts charged as to the violation of special Acts;

A. Summary of the facts charged

The Defendant, along with a specially related person, owns more than 3% of the shares of Nonindicted Co. 3 and the total market price of the shares owned is at least 10 billion won. From August 9, 2006 to December 15, 2006, the tax authority failed to report the capital gains tax base by selling 196,705 shares from August 15, 2006 to selling 1,716,758,544 won of the borrowed shares as stated in attached Table 4-1, 4-2, and subsequently, at the tax office having jurisdiction over the place of tax payment, upon the occurrence of capital gains tax return on the above amount until May 31, 2007. However, even though the person liable to pay capital gains tax was required to make a tax return on the said amount at the tax office having jurisdiction over the place of tax office by trading the shares in the account opened by borrowing the name of executives and employees of Nonindicted Co. 27, the Defendant could not report the capital gains tax base by fraudulent or other unlawful acts.

B. Determination

Of the facts charged as to the violation of the Act on Special Cases (Tax) since the part concerning the evasion of capital gains tax from the transfer of borrowed stocks in 2006 falls under the case where there is no proof of crime for the same reason as the above 2.c. (2) (d) of the above 2.06, it shall be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, as long as it is found guilty of a violation of the Act on Special Cases (tax) due to the evasion of constructive gift tax due to the merger around July 2006, which is related to the crime, the sentence of innocence shall not be

Public Prosecution Rejection Parts

1. Summary of the charge of violation of the Act on Special Cases Concerning the Evasion of Gift Tax due to Paid-in capital increase by issuing new shares on December 26, 2003

On December 26, 2003, the Defendant paid the subscription price for new shares instead of Nonindicted 12, 11, and 14, who were children, and donated the shares to them to them, and thereby, Nonindicted 12 did not report on donated property by March 26, 2004, which was the reporting deadline, on which Nonindicted 50,000 won (=5,000 won 】 10,000 won), Nonindicted 11 was 74,00,000 won (=5,000 won x 14,800 won x 14,800 won), and Nonindicted 14 was 58,150,000 won (= 5,000 won x 11,630 shares x 11,630 shares).

Accordingly, the Defendant evaded gift tax on the stocks donated to Nonindicted 12, 11, and 14 by fraud or other unlawful means.

2. Determination

On the grounds stated above 2. C. (2) c. and (c), a public prosecution as to the above facts charged is null and void in violation of the provisions of law, and thus, the public prosecution is dismissed pursuant to Article 327 subparagraph 2 of the Criminal Procedure Act.

It is so decided as per Disposition for the above reasons.

Judges Cho Jae-sung (Presiding Judge)

심급 사건

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원심판결

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