[1] Criteria for determining the intent of the defraudation in fraud

[2] The case affirming the judgment of the court below which recognized the establishment of a crime of fraud as to the amount equivalent to the above attempted stocks in a case where the securities company borrowed money from the securities company for a short period of time to increase the stock price as the target price in the process of price manipulation of specific stocks

[3] In a case where the court below reversed the entire conviction due to other crimes committed in relation to concurrent crimes although the court of final appeal judged that there was no ground of final appeal, and then remanded the entire conviction, whether the defendant can again assert the ground of final appeal as to the part which was rejected in the previous final appeal (negative)

[4] The applicable law in cases where market price manipulation, which is a single comprehensive crime, is extending over before and after the revision of the Securities and Exchange Act

[5] In a case where the crime of violation of the Securities and Exchange Act due to market price manipulation, which is a single comprehensive crime, is committed before and after the revision of the Securities and Exchange Act, the method of calculating the profit

[1] The intent of defraudation, which is a subjective constituent element of a crime of fraud, shall be determined by comprehensively taking into account the objective circumstances, such as the financial history, environment, details and contents of the crime before and after the crime, and the process of transaction execution, unless the defendant is led to confession.

[2] The case affirming the judgment of the court below which recognized the establishment of a crime of fraud as to the amount equivalent to the above attempted stocks in a case where the securities company borrowed money from the securities company to increase the stock price in a short period of time in the price manipulation process of the specific stocks

[3] The part rejected by the court of final appeal on the ground that the argument in the grounds of final appeal is groundless shall become final and conclusive at the same time with the declaration of the judgment, and the defendant shall not be able to dispute this part of the judgment, and the court to which the case was remanded shall not make a decision contrary to this part. Thus, the defendant cannot make a claim as to this part as the grounds for final appeal, and even if the court below conducted a partial examination of evidence on this part of the crime after remand, it is nothing

[4] In a case where market price manipulation, which is a single comprehensive crime, was conducted before and after the enforcement of the Act on the Amendment of the Securities and Exchange, when the profit or loss avoided due to the crime after the enforcement of the Securities and Exchange Act satisfies the elements of Article 207-2 (2) of the same Act, the punishment may be imposed by applying Article 207-2 (2) of the same Act. However, unless otherwise, Article 207-2 of the former Securities and Exchange Act (amended by Act No. 6695 of Apr. 27, 2002) shall apply to the principle of non-payment.

[5] If profits accrued from the sale of stocks mobilized after the enforcement of the Act on the Amendment of the Securities and Exchange are assessed to be included in the ‘profit accrued from the violation after the enforcement of the Securities and Exchange Act' regardless of the period of purchase, if the stock price increase continuously since the enforcement of the Securities and Exchange Act, the profits accrued after the enforcement of the Securities and Exchange Act with respect to the stocks purchased before the enforcement of the Securities and Exchange Act, which were not sold at the time of the enforcement of the Securities and Exchange Act, shall be assessed as the profits accrued from the enforcement of the Securities and Exchange Act. Therefore, it is reasonable to view that the profits accrued from the sale of stocks mobilized before the enforcement of the Securities and Exchange Act, which were purchased before the enforcement of the Securities and Exchange Act, and were unfair as a result of disadvantageous results in the application of the Securities and Exchange Act with regard to the profits accrued after the enforcement of the Securities and Exchange Act. Therefore, the profits accrued from the evaluation of stocks (unrealized profits)

[1] Article 347 of the Criminal Code / [2] Article 347 of the Criminal Code / [3] Article 397 of the Criminal Procedure Act / [4] Article 207-2 (2) of the Securities and Exchange Act, Article 207-2 of the former Securities and Exchange Act (amended by Act No. 6695 of April 27, 2002) / [5] Article 207-2 (2)

[1] Supreme Court Decision 96Do481 delivered on May 14, 1996 (Gong1996Ha, 1959), Supreme Court Decision 2002Do1376 Delivered on June 28, 2002, Supreme Court Decision 2004Do3515 Delivered on December 10, 2004 (Gong2005Sang, 155) / [3] Supreme Court Decision 2001Do265 Delivered on April 10, 2001 (Gong201Sang, 1175) (Gong202Do3062 Delivered on March 28, 2003) / [4] Supreme Court en banc Decision 86Do1012 delivered on July 22, 198 (Gong1986; 193Do1983, May 29, 195)

Defendant

Defendant

Law Firm SPP, Attorneys Shin Young-ok et al.

Supreme Court Decision 2004Do1465 Delivered on May 28, 2004

Seoul High Court Decision 2004No1387, 1291 delivered on November 26, 2004

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

1. As to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) against the victim teaching right corporation

The intent of the crime of defraudation, which is a subjective constituent element of fraud, shall be determined by comprehensively taking into account the objective circumstances such as the financial history, environment, details and details of the crime before and after the crime, and the process of the transaction (see Supreme Court Decisions 96Do481 delivered on May 14, 1996; 2002Do1376 delivered on June 28, 2002, etc.).

In light of the following circumstances, i.e., the Defendant continued to increase the market price of the stocks through 00 global market price manipulation with Co-Defendant 2, i.e., 00 won after 20 billion won, and thus, it cannot be deemed that sufficient collateral was provided with only the stocks revealed out of the aggregate. In fact, the closing price of the global shares is KRW 80 on February 15, 200, KRW 1,025 on March 8, 201, KRW 1,510 on April 23, 200, KRW 4,300 on September 29, 200, KRW 6,00 on September 19, 200, KRW 200 on September 26, 200, KRW 200 on September 26, 200, and KRW 70 on September 20, 200 on the market price of the instant shares.

Examining the records in light of the above legal principles, the fact-finding and decision of the court below is justified, and there is no error of misconception of facts against the rules of evidence or of misunderstanding of legal principles as to the establishment of fraud.

2. As to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) against the victim's gambling.

According to the records, the court below found the defendant guilty on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) and the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) on the Aggravated Punishment, etc. of the Aggravated Punishment, etc. of the Aggravated Punishment, etc. of the Aggravated Punishment, etc. of the Aggravated Punishment, etc. of the Aggravated Punishment, etc. of the Aggravated Punishment, etc. of the Aggravated Punishment, etc. of the Aggravated Punishment, etc. of the Aggravated Punishment, etc. of the Aggravated Punishment, etc. of the Aggravated Punishment, etc. of the Aggravated Punishment, etc. of the Aggravated Punishment, etc. of the Aggravated Punishment, etc. of the Aggravated Punishment, etc. of the Aggravated Punishment, etc. of the Aggravated Punishment, etc. of the Aggravated Punishment, etc. of the Aggravated Punishment, etc. of the Aggravated Punishment, which are the facts charged against the defendant. The judgment below rejected all the defendant's grounds for appeal.

The part rejected by the court of final appeal on the ground that the argument in the grounds of final appeal is groundless at the same time as the ruling becomes final and conclusive, and the defendant can no longer dispute against this part of the judgment which is remanded, and the defendant cannot make a decision contrary to this part of the judgment which is remanded. Thus, the defendant cannot make a claim as to this part of the judgment as the grounds of final appeal. Although the court below made a partial examination of evidence as to this part of the crime after remand, it is nothing more than that without meaning (see, e.g., Supreme Court Decisions 2001Do265, Apr. 10, 2001; 2002Do3062, Mar. 28, 2003). Thus, the part of the defendant's grounds of final appeal as to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) against the victim's gambling in the grounds of final appeal is dismissed on the ground that the defendant's ground of final appeal in this part is not legitimate,

3. On the violation of the Securities and Exchange Act

A. The court below held that since Co-Defendant and Co-Defendant 2 conducted market price manipulation on global shares from February 15, 2002 to October 9, 2002, the shares sold after April 27, 2002, which were amended and enforced by the Securities and Exchange Act, were affected by market price manipulation since April 27, 2002, and the value increase due to the price manipulation after April 27, 2002, and therefore, the former Securities and Exchange Act, which was punished after April 27, 2002, was all subject to punishment of the shares sold after April 27, 200, under the premise that the former Securities and Exchange Act (amended by Act No. 6695, Apr. 27, 2002; hereinafter referred to as the "former Act"), it should be deemed that the former Securities and Exchange Act was revised from 200 billion won to 205,000,000 won before the enforcement of the Securities and Exchange Act.

B. However, the lower court’s determination is difficult to accept for the following reasons.

The proviso of Article 207-2 of the former Act provides that if the amount equivalent to three times the profit accrued or loss avoided from a violation exceeds 20,000 won, the person shall be punished by a fine not exceeding three times the profit accrued or loss avoided. Article 207-2 (2) of the former Act provides that where the profit accrued or loss avoided from the violation is at least five billion won but less than five billion won, the person shall be punished by aggravated punishment. The Act provides that the profit accrued or loss avoided from the crime after the enforcement of the amended Act shall be at least 207-2 (2) of the former Act shall be included in the calculation of the total profit accrued from the violation of Article 207-2 (2) of the former Act, which includes the difference between the total profit accrued from the violation of Article 207-2 (2) of the former Act and the total profit accrued from the violation of Article 207-2 (2) of the former Act, which includes the difference between the total profit accrued from the violation of Article 207-2 (2) of the former Act and the Act, which includes the total profit accrued from 207-20.

However, if the profit accrued from the sale of the stocks mobilized after the enforcement of the amended Act as stated in the judgment below is assessed to be included in the "profit accrued from the violation after the enforcement of the amended Act" regardless of the purchase time, it is reasonable to view the profits prior to the enforcement of the amended Act as the profits prior to the enforcement of the amended Act, if the stock price continuously increased after the enforcement of the amended Act, with respect to the stocks purchased prior to the enforcement of the amended Act, but not sold at the time of the enforcement of the amended Act, all appraisal profits accrued after the enforcement of the amended Act as well as after the enforcement of the amended Act. Accordingly, it is reasonable to view the profits prior to the enforcement of the amended Act as the profits prior to the enforcement of the amended Act as the profits accruing from the sale and sale of all the stocks mobilized before the enforcement of the amended Act.

Therefore, without calculating the evaluation profits of global stocks held at the time of the enforcement of the amended Act, profits accrued from the sale of stocks mobilized after the enforcement of the amended Act shall be included in the ‘profit accrued from the violation after the enforcement of the amended Act' regardless of the purchase time, and the punishment for the application of the amended Act is erroneous in failing to properly examine the ‘profit accrued from the violation' under the Securities and Exchange Act or in misunderstanding the legal principles thereof, which affected the judgment.

4. If so, the judgment of the court below that the defendant's violation of the Securities and Exchange Act due to the defendant's global stock price manipulation is no longer possible, and since the above crime was sentenced to a single punishment in relation to the remaining convictions against the defendant and concurrent crimes under the former part of Article 37 of the Criminal Act, the part of the judgment of the court below against the defendant is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by

Justices Yoon Jae-sik (Presiding Justice)