(영문) 서울고등법원 2012.05.11 2011노2227 | 리걸엔진

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자간(%)

(영문) 서울고등법원 2012.05.11 2011노2227

자본시장과금융투자업에관한법률위반

Text

The judgment of the court below is reversed.

Defendant

A Imprisonment with labor for one year, Defendant B with a fine of KRW 15 million, and Defendant C with a fine of KRW 2.

Reasons

1. Summary of grounds for appeal;

A. The sentence of the lower court against Defendant A is too unreasonable.

B. In light of the following: (i) Whether shares entered in and withdrawn from the market manipulation-related account such as misunderstanding of the legal principles as to the acquittal portion of reasons in the lower judgment were actually purchased or sold at any time, only the Defendants can be aware; and (ii) the Defendants did not raise any objection as to the calculation of unjust enrichment in the course of the investigation or trial, the Defendants were guilty of having obtained unjust enrichment of KRW 112,079,919 in total through market price manipulation on the shares at the (J) J (hereinafter “J”). However, the lower court acquitted the Defendants of this part.

Dob. The sentence of the lower court against the Defendants is too unjustifiable and unjust.

2. The grounds for appeal are examined ex officio before determining the grounds for appeal.

In the first instance trial, the prosecutor applied for changes in the indictment to the effect that the portion of the facts charged against the Defendants, which was judged not guilty for the reasons in the lower trial (the fact that the Defendants acquired unjust enrichment equivalent to 1.12,079,919 won in total due to the instant crime), is changed (the sum of the amount of unjust enrichment shall be reduced to 84,764,037 won), as stated in the “criminal facts” in the portion of the verdict, and the said court permitted this.

Therefore, the judgment of the court below is no longer maintained as the subject of the judgment was changed.

3. In conclusion, the judgment of the court below is reversed without examining the grounds for appeal, and the part of the judgment below's judgment on acquittal and the facts charged with conviction constitute a single crime under law. Thus, the whole judgment of the court below is reversed.

The following judgments shall be rendered after pleading:

Criminal facts

The substance of the facts charged and the summary of the evidence recognized by the court.

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