(영문) 서울고등법원 2016. 6. 17. 선고 2016노54 판결

Defendant 1 shall be punished by imprisonment with prison labor for up to two years and six months, and by imprisonment for up to one year and six months.

The appeal filed by the Defendant 3 (PS: Nonindicted 7); Defendant 3; Defendant 4 (PS: Defendant 3); Defendant 5 (PS 9); Defendant 6 (PS : Nonindicted 10); Defendant 7; Defendant 8 (PS : Defendant 4); and Defendant 9 (PS : Defendant 5) among the lower judgment, are all dismissed.

Reasons

1. Summary of grounds for appeal;

A. Defendants 1, 2, 3, and 7

1) misunderstanding of facts or misapprehension of legal principles

A) The violation of the Financial Investment Services and Capital Markets Act related to the distribution of the rumors of stock price manipulation (Article 2 of the facts constituting the crime in the original judgment)

Defendant 1: The above Defendant did not spread a rumor relating to the share price manipulation of Nonindicted Company 4’s shares either directly or through Defendant 7.

Defendant 7: The above Defendant made a statement to the effect that the shares of Nonindicted Company 4 are good shares for investment, but there is no fact that Nonindicted Company 4’s share price changes due to market manipulation. The recognition of the possibility and awareness of a criminal intent to attract the purchase of shares to a certain person as above is erroneous in the misapprehension of the legal doctrine on the dissemination of a market manipulation under the Capital Market Act and the Financial Investment Services and Capital Markets Act (hereinafter “Capital Markets Act”).

B) Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) related to the acquisition of △△△ (Article 3)

Defendant 1: The above Defendant 1 did not receive part of the acquisition price from Nonindicted 12, the operator of Nonindicted Company 3, due to the reduction in the acquisition price of △△△△, but the Defendant 9, who raised funds for the operation of Nonindicted Company 4, borrowed the above money from Nonindicted 12 to provide the above Defendant to the said Defendant for performance security. The above KRW 1.5 billion is the performance security amount provided by Defendant 9 in accordance with the agreement, and the above Defendant was not the money entrusted by Nonindicted Company 4, and thus, the crime of embezzlement against Nonindicted Company 4 cannot be established.

C) Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) related to Nonindicted Co. 5 (Article 5 of the crime in its original judgment)

Defendant 1: There is no evidence to acknowledge that the price for the total sales contract for tin rice, which was concluded between Nonindicted Co. 4 and Nonindicted Co. 5, was less than KRW 800,000,000,000. The above Defendant did not know about the process of returning KRW 800,000 from Nonindicted Co. 5, and the said money was personally lent to Defendant 2. Thus, Defendant 1 is not the custodian of the said money.

Defendant 2: The above Defendant received KRW 80 million from Nonindicted Co. 5’s operator Nonindicted Co. 6, and delivered it to Defendant 1, and was unaware of the fact that the said money was part of the total purchase price of the instant sales contract for the instant rice farm manufacturing device. In addition, the said KRW 3.5 million paid to Defendant 2 out of the above KRW 800 million constituted the Defendant’s repayment of principal and interest obligation and honorarium for KRW 300 million lent to Nonindicted Co. 4 as operating funds, and thus, constitutes embezzlement.

D) Violation of the Capital Markets Act related to market price manipulation (Article 6 of the facts constituting the crime in the original judgment)

Defendant 1: The above Defendant offered 4 million shares of Nonindicted Company 4, which he owns, as security, to the bond company, etc., but sold them by the opposite trade, demanded Defendant 4 to recover his shares in its original condition, and there was no market price manipulation in collusion with Defendant 2, etc.

Defendant 2: The above Defendant received KRW 500 million in cash and KRW 500,000 in shares from Defendant 1 for the purpose of compensating for losses that he/she had invested in Nonindicted Company 4’s shares, but there was no fact that the Defendant conspired with other Defendants in collusion with Nonindicted Company 4’s shares at Defendant 1’s request.

2) Unreasonable sentencing

The sentence of the lower court (Defendant 1: three years of imprisonment, two years of imprisonment, Defendant 3, and Defendant 7: 2 years of suspended sentence of one year of imprisonment) is too unreasonable.

(b) Prosecutors;

1) misunderstanding of facts or misapprehension of legal principles

A) The violation of the Capital Markets Act related to the acquisition of △△△ by Defendant 1, Defendant 4, and Defendant 9 (Article 1 of the acquittal in the original judgment)

The above Defendants created profits by acquiring a set through the acquisition of △△ case, an important information that was not disclosed for the purpose of market profits from the beginning. This constitutes an act that harms the fairness of the securities market by using the information. Meanwhile, Defendant 1, through Defendant 7, recruited funds from Nonindicted 2, Nonindicted 11, etc. by explaining about the acquisition of △△△△△, and soliciting them to acquire and exercise the set, and Defendant 9 recommended the acquisition and exercise of the set by making comments about the acquisition of △△△△, with Nonindicted 13, and Nonindicted 14, etc., to the effect that the acquisition of the set would be able to obtain profits from the market. This is not a transaction between the persons sharing the information, but a transaction between other investors, and thus, it constitutes the use of the material nonpublic information prohibited by the Capital Markets Act.

B) Defendant 1 and Defendant 8’s violation of the Financial Investment Services and Capital Markets Act (Article 2 of the judgment of the court below) concerning the attraction of investment in △△△ (Article 2

According to Defendant 6 and Defendant 8’s statements, etc., the above Defendants did not disclose the fact that the attraction of investment in △△ Company 4 was de facto impaired prior to January 24, 2013, but continued to proceed with the offering of new shares by offering new shares to the general public of Nonindicted Company 4 without disclosing the fact. This is an act of using unfair means, plans, or tricks in connection with the sale and purchase or other transaction of financial investment instruments, and acquired unjust enrichment by publicly announcing the omission of material facts.

C) The embezzlement of Defendant 1’s victim Nonindicted 11 and Nonindicted 2 (Article 3 of the Judgment of the original instance)

According to the statements, etc. of the above victims, although the above defendant was obligated to keep the total amount of KRW 1 million of the shares of Nonindicted Co. 4, which he had received from the victims, for the above victims, the above victims embezzled by arbitrarily disposing of the remaining shares except for the part of the shares and the sales price of the shares issued to the victims.

2) Unreasonable sentencing

The sentence of the lower court (the sentence imposed on Defendant 1, Defendant 2, Defendant 3, and Defendant 7 is as indicated in the foregoing A. 2). Defendant 4: The sentence of imprisonment for one year and six months; three years of suspended execution of a fine; KRW 10,00 won; and Defendant 6: 1 year of suspended execution of a fine for six months) is too unfortunate and unfair.

2. Determination of the misconception of facts or misapprehension of legal principles by Defendant 1, Defendant 2, and Defendant 7

A. Violation of the Financial Investment Services and Capital Markets Act relating to the spread of a stock price manipulation

Defendant 1 and Defendant 7 argued to the same effect as the grounds for appeal in this part of the judgment below, and the court below rejected the above assertion in detail on the grounds that the above Defendants’ assertion and its decision were stated in Paragraph 1 of “the judgment on the assertion of the Defendants and their defense counsel.”

In addition to the circumstances that are acknowledged by the evidence duly adopted and examined by the court below, the court below's determination is proper, and there is no error of misconception of facts or of misapprehension of legal principles as pointed out by the above defendants, in light of the following: the investigative agencies of the non-indicted 2, the non-indicted 11, the non-indicted 15, the non-indicted 16, the non-indicted 17, and the non-indicted 17, and each statement in the court of the court below is consistent, specific, and contradictory.

The grounds of appeal by the above Defendants are without merit.

B. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) concerning △△ acquisition

Defendant 1 also argued to the same effect as the grounds for appeal in this part of the judgment of the court below, and the court below rejected the above argument in detail by stating in detail the above defendant's assertion and its decision as stated in Paragraph 2 of "the judgment on the defendant and his defense counsel's assertion

In full view of the following circumstances admitted by the court below based on the evidence duly admitted and investigated by the court below, it is proper to make the above judgment, and there is no error of mistake of facts or misapprehension of legal principles as pointed out by the above defendant. The above defendant's ground of appeal on this part is without merit.

In a contract entered into on December 8, 2011 between Defendant 1 and Defendant 9, “(i) Defendant 9 may engage in the private placement of at least KRW 2 billion and invest KRW 1.6 billion in the acquisition of equity in △△△△△△ equity out of the funds raised therefrom. ② Defendant 9 may engage in a small amount of public offering of KRW 1 billion at the beginning of January 2012 in order to secure additional funds. ③ Nonindicted Co. 4 agreed that “When KRW 3 billion is recovered by selling shares to △△△△△△△△△△, Nonindicted Co. 4 shall use KRW 2.5 billion for the balance of △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△

On January 9, 2012, Nonindicted Co. 4 paid KRW 2.6 billion to Nonindicted Co. 3 as the intermediate payment of △△△ acquired funds. This money was raised from Nonindicted Co. 4’s resort event funds, and funds raised from KRW 1 billion with ordinary subscription to new shares on January 6, 2012, and KRW 3 billion with Defendant 9’s resorts 1.0 billion with subscription to new shares and KRW 2 billion with Defendant 14 allocated new shares.

Meanwhile, the “Agreement on Contracts for Acquisition of Stocks and Management Rights” written between Defendant 1 and Nonindicted Co. 3’s operator Nonindicted Co. 12 on January 9, 2012, the intermediate payment payment date, stipulated that “If Nonindicted Co. 4 fails to offer capital increase for the purpose of raising the purchase price of stocks from January 9, 2012 to January 31, 2012, Nonindicted Co. 3 shall reduce the balance of KRW 1.5 billion out of the total transfer price.”

In full view of the foregoing facts, the method of securing the balance of the acquisition price of △△△ unless the shares of Nonindicted Co. 4 are sold to Nonindicted Co. 4, 201 at the time of the intermediate payment of the purchase price of △△△△ on January 9, 2012, among the financing methods under the above contract with Nonindicted Co. 4 on December 8, 2011, was to secure the balance of the acquisition price of △△△△△ KRW 2.5 billion by means of private placement, etc. In accordance with the above paragraph (3). Accordingly, the allegation that “the purchase price of △△△△△△△△△△△△ was already completed by Nonindicted Co. 4 during the period from January 9, 2012 to January 31, 2012” in the “Agreement on the Acquisition of Stocks and Management Right” to the effect that “the purchase price of △△△△△△△△△△△△ was already completed by Nonindicted Co. 21,2012.

Until January 31, 2012, the outstanding payment date for the acquisition price of △△ for Nonindicted Co. 3, 2012, Nonindicted Co. 4 did not offer additional KRW 2.5 billion to Defendant 9. Thus, upon the agreement on January 9, 2012, the obligation to pay the balance of KRW 1.5 billion to Nonindicted Co. 4’s acquisition price for Nonindicted Co. 3 was extinguished.

In the prosecutorial investigation, Nonindicted 12, the operator of Nonindicted Co. 3, who was the operator of Nonindicted Co. 3, sent KRW 1.5 billion to Defendant 1 in the form of a loan to Defendant 9, was called “Defendant 1 demanded. At the time, Defendant 1 was sent the passbook to Nonindicted Co. 4 through a low-income employee. As such, Nonindicted Co. 3’s employees with passbook 18, who received money from Nonindicted Co. 4, and called to deduct Nonindicted Co. 4. However, it was just that Defendant 1 was sent directly, and that Defendant 1 was asked to receive money from Nonindicted Co. 18, and that Defendant 1 was asked to receive money from Nonindicted Co. 9.” The author stated that “The money is memoryd as it would have changed,” and that Defendant 1 would be able to do so.

C. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) related to Nonindicted Co. 5

1) Defendant 1 and Defendant 2 also argued to the effect that they are similar to the grounds for appeal in this part of the judgment below, and the court below rejected the above assertion in detail on the grounds that in Article 3 of the "Determination on the Defendant and his defense counsel's assertion" of the judgment, the court below rejected the above argument.

In full view of the following circumstances acknowledged by the evidence duly admitted and investigated by the lower court, the lower court’s determination that the said Defendants conspired to use the down payment and intermediate payment that Nonindicted Co. 4 paid to Nonindicted Co. 5 without delay is justifiable.

On March 25, 2013, Nonindicted Co. 4 and Nonindicted Co. 5 agreed to enter into a domestic and overseas total sales contract on “i.e., tin rice manufacturing device” and the total sales right thereof owned by Nonindicted Co. 5 on March 25, 2013. Nonindicted Co. 4 agreed to pay the transfer price to Nonindicted Co. 5 with a total of KRW 2.2 billion (350 million in contract amount, intermediate payment of KRW 50 million in the contract amount, KRW 1.350 million in the contract amount, and the remainder payment of KRW 1.35 million in the contract amount, June 28, 2013). In light of the fact that there was no substantial examination of anticipated profits, etc. in the process of entering into the contract, ② it was an intangible property right, such as the patent right and total sales right, which was owned by Nonindicted Co. 5 Company, but did not properly evaluate it, ③ it appears that the intermediate payment was paid to Defendant Co. 500 million in the first place of intermediate payment without delay.

○○ Nonindicted Co. 5’s written statement was prepared by Nonindicted Co. 6 at the time of investigation by Nonindicted Co. 6’s prosecutor. Nonindicted Co. 6 (“Nonindicted Co. 6”) that “The working person and the person in charge of Nonindicted Co. 6 negotiated the terms and conditions of the contract with Nonindicted Co. 4 and decided on the terms and conditions of the contract with Nonindicted Co. 6. Of down payment and intermediate payment, Defendant 4 and Defendant 2 requested the return of KRW 800 million, and Defendant 1 gave a loan to Nonindicted Co. 6 upon confirmation. Defendant 1. The demand for return of KRW 800 million was continued to Defendant 1 and Defendant 4, and Nonindicted Co. 6’s written statement was issued at the time of investigation by Nonindicted Co. 6’s request, and Nonindicted Co. 6’s written statement was made at the time of the first inquiry by Nonindicted Co. 1 and Nonindicted Co. 6’s written statement to the effect that it was difficult for Nonindicted Co. 4 to first respond to an inquiry by Nonindicted Co. 6.

2) However, among the KRW 80 million returned from Nonindicted Co. 5, the part of KRW 350 million paid to Defendant 2 among the KRW 800,000,000 that was returned by Nonindicted Co. 5 is recognized by the following legal principles and the evidence examined by the original court and the trial (in particular, the evidence Nos. 7-1, 2, 3, 8-1, 8-2, which was requested by Defendant 2 in the trial and the examination of evidence). In light of the following circumstances, it is difficult to view that Nonindicted Co. 4 embezzled the funds.

○ In the crime of embezzlement, an unlawful acquisition intent refers to the intent of a person who keeps another’s property without authority to dispose of it by himself/herself against the purpose of entrustment. Therefore, in cases where the custodian disposes of it for the benefit of the owner, not for his/her own or a third party’s interest, barring any special circumstance, the intent of unlawful acquisition cannot be recognized (see, e.g., Supreme Court Decision 2011Do1904, May 26, 2011).

On March 20, 2013, Defendant 2 deposited KRW 300 million into an account in the name of Nonindicted Company 19 in order to prevent the designation of Nonindicted Company 4 in the course of purchasing △△ shares owned by Nonindicted Company 4 in order to pay KRW 280 million. On the same day, Defendant 2 returned the said KRW 300 million from Nonindicted Company 19. On March 21, 2013, Defendant 2 deposited KRW 300 million in the name of Nonindicted Company 4 in order to raise funds for the operation of Nonindicted Company 4, and Nonindicted Company 4 paid KRW 350 million out of KRW 80 million returned by Nonindicted Company 5,50 million on the same month to Defendant 2. In light of the legal principles as seen earlier, Defendant 2 could not be deemed to have leased KRW 400 million to Nonindicted Company 431,200,000,000 to Defendant 350,000,000 for the purpose of acquiring the principal and interest of Nonindicted Company 4.

3) The allegation in the grounds of appeal on this part is without merit as to the part of KRW 450 million, which was jointly disposed of by Defendant 1 and Defendant 2, out of KRW 800,000,000 that was returned from Nonindicted Company 5. However, as seen earlier, the part of KRW 350,000,000 that was repaid to Defendant 2 for the benefit of Nonindicted Company 4 cannot be recognized, and thus, it does not constitute embezzlement. The judgment below convicting the above Defendants of embezzlement of KRW 350,00,000 in collusion, thereby affecting the conclusion of the judgment by misapprehending the legal principles on mistake of facts and embezzlement.

D. Violation of the Financial Investment Services and Capital Markets Act regarding market manipulation

Defendant 1 and Defendant 2 argued to the same effect as the grounds for appeal in this part of the judgment below, and the court below rejected the above assertion in detail on the grounds of the above Defendants’ assertion and its judgment in Article 4 of the “Determination on the Defendant and his defense counsel’s assertion” of the judgment.

In full view of the following circumstances acknowledged by the court below based on the evidence duly admitted and investigated by the court below, the court below's determination is justified, and there is no error in the misapprehension of legal principles or misapprehension of legal principles as pointed out by the above Defendants. The above Defendants' ground of appeal on this part is without merit.

The term “purpose of inducing a trade” under Article 176(2) of the Financial Investment Services and Capital Markets Act means a trade that is likely to cause an artificial change in the market price due to artificial manipulation, and thus, is intended to mislead investors as to whether the market price was formed by the principle of natural demand and supply in the securities market, etc. for the purpose of trading securities, etc., and whether the market price exists for other purposes or its main purpose is not an issue, but the degree of perception of purpose is also insufficient. Meanwhile, the term “trade that misleads investors of, or changes in, the market price” under Article 176(2)1 of the said Act refers to a trade that is likely to cause an artificial change in the market price and trading volume to be formed in the free competition market according to normal demand and supply. Where a series of acts have been committed, it is sufficient to determine the market price as a whole due to such acts. In addition, even if each party satisfies the requirements for the determination of the market price as to whether the trading price was the most likely factors, such as the motive and trading volume of securities, etc.

Based on these legal principles, ① Defendant 1 was in need of maintaining management rights by gathering 4 million shares of Nonindicted Co. 4 that were sold against the Defendant 1, and there was an incentive to attempt to manipulate in order to minimize economic losses in the process. ② From June 5, 2012 to June 20 of the same month, the Defendants who conspired to commit the instant manipulation submitted an order to intentionally lower the price of Nonindicted Co. 4’s shares at a relatively low price using 11 securities account during the period from June 5, 2012 to June 20. In order to do so, the Defendants submitted an order to intentionally buy or sell the shares of Nonindicted Co. 4 at a low price. In light of the fact that the market price manipulation order, such as low price selling order, so-price selling order, market price order, market price order, and so on, up to 721 times in total, up to 20.2% in total during the manipulation period, the share price increase in Nonindicted Co. 4’s shares at 20% in total during the 7 trading price increase.

In relation to co-offenders who are jointly engaged in a crime by more than two persons, the conspiracy does not require any legal punishment, but is only a combination of two or more persons to jointly process a crime and realize the crime. Even if there was no process of conspiracy, if the combination of doctors is made in order or impliedly through several persons, the conspiracy relationship is established, and even if there was no direct participation in the act of conspiracy, even if there was no direct participation in the act of conspiracy, criminal liability as a co-principal is imposed on the act of another co-principal. The above conspiracy can be acknowledged by the circumstantial facts and empirical rules without direct evidence (see Supreme Court Decision 2003Do4320, May 11, 2006, etc.).

In light of these legal principles, even if Defendant 1 did not directly take charge of the manipulation of Nonindicted Company 4’s shares in the stock trading market, Defendant 1 offered bonds to Defendant 2 introduced through Defendant 4 as collateral, and asked for recovery of 4 million shares of Nonindicted Company 4 that were sold through the opposite trading, ② offered large amount of funds and borrowed securities account necessary for the manipulation of stock price, ③ received the report on the trading result of Nonindicted Company 4’s shares on the day through Nonindicted 20, which is the execution cost after the closing of the stock trading market during the period of stock price manipulation, ④ transfer of the above manipulation, but around May 6, 201 to Defendant 7, it appears that Defendant 4 had been aware of the basic contents of the initial manipulation through the manipulation of stock price, such as requesting that Nonindicted Company 4 make a contribution up to 10 to 20 times, and thus, Defendant 484 was finally aware of the basic contents of the stock price manipulation.

3. Judgment on the prosecutor's assertion of mistake or misapprehension of legal principles

A. Violation of the Capital Markets Act concerning the acquisition of △△△ by Defendant 1, Defendant 4, and Defendant 9

On the grounds indicated in its reasoning, the lower court acquitted Defendant 1, 4, and 9 of this part of the facts charged on the ground that it is difficult to recognize that the evidence submitted by the prosecutor alone was used for sale or any other transaction of material nonpublic information.

Comprehensively taking account of the circumstances in the reasoning of the lower judgment which is admitted in the record, the lower court’s aforementioned determination is justifiable, and there is no error of misunderstanding of facts or misunderstanding of legal principles as otherwise alleged by the prosecutor (in light of the relevant legal principles and overall circumstances, even if the Defendants provided a third party with information on the acquisition of △△ shares, and the Defendants’ act cannot be readily concluded that the Defendants’ act constitutes “use of material nonpublic information” under the Capital Markets Act). The Prosecutor’s allegation in this part of the grounds for appeal is groundless.

B. Defendant 1 and Defendant 8’s violation of the Financial Investment Services and Capital Markets Act relating to attracting investment in △△.

On the grounds indicated in its reasoning, the lower court acquitted Defendant 1 and Defendant 8 of this part of the facts charged on the ground that it was insufficient to recognize that Defendant 1 and Defendant 8 conspired with the Prosecutor to acquire unjust enrichment of KRW 90 million through public offering with capital increase with capital increase by issuing new shares.

In addition to the following circumstances acknowledged by the records, the above judgment of the court below is just, and there is no error of misunderstanding of facts or misunderstanding of legal principles as alleged by the prosecutor. This part of the appeal by the prosecutor is without merit.

○○ On January 8, 2013, on the part of Nonindicted Company 4, at least twice the same month, sent to Nonindicted Company 4 a document stating that “The Investment Agreement (SPPA) on December 28, 2012 would be cancelled if the fee is not paid by a specified deadline).” However, prior to the same month, Nonindicted Company 4 sent a document stating that the said investment contract was cancelled or terminated due to the non-payment of fee.

Rather, the phrase of the document sent to Nonindicted Company 21 and Nonindicted Company 22 on January 27, 2013 includes the phrase “Magire is not exempt from any obligation of Nonindicted Company 4, and it does not raise any objection to Nonindicted Company 4.” In light of this, Magire appears to have been aware that the said investment relationship with Nonindicted Company 4 was not terminated at least until this time.

C. The embezzlement of Defendant 1’s victim Nonindicted 11 and Nonindicted 2

For the reasons indicated in its holding, the lower court acquitted Defendant 1 of this part of the facts charged on the ground that the evidence submitted by the prosecutor alone could not be deemed that Defendant 1 embezzled Nonindicted 11 and Nonindicted 2’s property.

In full view of the circumstances in the reasoning of the court below which are admitted on the record, the above judgment of the court below is just, and there is no error of misconception of facts or misapprehension of legal principles as alleged by the prosecutor. This part of the appeal by the prosecutor

4. Determination on the assertion of unfair sentencing by Defendants 3 and 7 and the prosecutor

In a case where there is no change in the conditions of sentencing compared with the first instance court, and the sentencing of the first instance court does not deviate from the reasonable scope of discretion, it is reasonable to respect it (see Supreme Court en banc Decision 2015Do3260, Jul. 23, 2015).

Based on the above legal principles, there is no change in the sentencing conditions compared to the original judgment, since new sentencing materials have not been submitted to Defendant 3, Defendant 4, Defendant 5, Defendant 6, and Defendant 7 at the trial. In full view of the sentencing grounds revealed in the proceedings of the instant case, the lower court’s sentencing against Defendant 3 and Defendant 7 is too heavy, or is so unfluent, and the lower court’s sentencing against Defendant 4, Defendant 5, and Defendant 6 is too unfluent, and thus, cannot be deemed to have exceeded the reasonable scope of discretion.

Defendant 3, Defendant 7, and the prosecutor’s assertion of unreasonable sentencing are without merit.

5. Conclusion

Of the appeal by Defendant 3 and Defendant 7 and the prosecutor’s appeal against Defendant 3, Defendant 4, Defendant 5, Defendant 6, Defendant 7, Defendant 8, and Defendant 9, the appeal against Defendant 1’s acquittal part is without merit, and all appeals are dismissed pursuant to Article 364(4) of the Criminal Procedure Act. The appeal against Defendant 1 and Defendant 2’s violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) related to Nonindicted Company 5 is partially reasonable, and the sentence is re-determined as to Defendant 1 and the part on Defendant 2. As such, without omitting the determination on the allegation of unfair sentencing by Defendant 1 and Defendant 2 and the prosecutor’s allegation of unfair sentencing against Defendant 1 and Defendant 2, and the decision on unfair sentencing against Defendant 2 is reversed, and the part on the conviction against Defendant 1 and Defendant 2 among the judgment of the court below against Defendant 2 are all reversed, and it is decided as follows through the pleading.

Criminal facts and summary of evidence

The summary of the facts charged and evidence admitted by the court is as follows: “Until January 31, 2012, the representative director of Nonindicted Co. 3 is unable to issue capital increase in an amount of KRW 2 billion to secure the cost of acquiring △△△△ by the Nonindicted Co. 4” from January 31, 2012; “Non-Indicted. 4 company cannot issue capital increase in an amount of KRW 2 billion to raise the cost of acquiring △△△△△ by January 31, 2012.” The Defendant 1 and Defendant 2’s violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) related to Nonindicted Co. 5” in Chapter 7 of the judgment of the court below, “it is difficult for Nonindicted Co. 1 and Defendant 2 to arbitrarily use the interest payment of Nonindicted Co. 5, 16, and the obligation of Defendant 1 to Nonindicted Co. 4, 200,000 won for each of the following purposes:

Application of Statutes

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

Defendant 1: Article 445 subparag. 20, Article 147(1) of the Financial Investment Services and Capital Markets Act (hereinafter “Capital Markets Act”); Article 443(1)5, Article 176(2)2 of the former Financial Investment Services and Capital Markets Act (amended by Act No. 11845, May 28, 2013; hereinafter “former Financial Investment Services and Capital Markets Act”); Article 30 of the Criminal Act; Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes; Article 35(1) of the Criminal Act; Article 446 subparag. 31, Article 17(1) of the former Financial Investment Services and Capital Markets Act (amended by Act No. 11845, May 28, 2013; hereinafter “former Financial Investment Services and Capital Markets Act”); Article 446 subparag. 31, Article 173(1) of the former Financial Investment Services and Capital Markets Act; Article 53(1)35(1)4), and (1)4) of the former Criminal Act’s.

Defendant 2: Articles 356, 355(1), 30 (a), 30 (a) of the Criminal Act (a crime of occupational embezzlement with respect to Nonindicted Company 5, a choice of imprisonment), Articles 443(1)4, 443(1)5, and 176(1)1, 2, 3, and 176(2)1 of the former Capital Markets Act, Article 30 of the Criminal Act (a punishment with labor, collectively,)

1. Handling concurrent crimes;

Defendant 1: The latter part of Article 37 and Article 39(1) of the Criminal Act

1. Aggravation for concurrent crimes;

Defendant 1: the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (Article 50 of the Criminal Act)

Defendant 2: former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act / [Aggravation of concurrent crimes with punishment stipulated in a crime of violation of the Capital Markets Act with heavier punishment]

1. Discretionary mitigation;

Defendant 1: Article 53 and Article 55(1)3 of the Criminal Act (The following consideration is given to the favorable circumstances among the reasons for sentencing)

Reasons for sentencing

1. Defendant 1, either alone or in collusion with Defendant 2 in the process of promoting the transfer of the management right of Nonindicted Company 4, has inflicted damage on the company by embezzlement of Nonindicted Company 4’s funds, and as such, Defendant 1 committed an act that infringes on the fairness and transparency of the capital market by spreading a rumor about the stock price manipulation for Nonindicted Company 4’s stocks or by soliciting market manipulation, it is highly likely to do so.

However, by paying the amount of damage to Nonindicted Company 4, the victim of the embezzlement crime, the intent of not to punish was expressed, and the scale of personal gain seems not to be significant.

2. Defendant 2, in collusion with Defendant 1, is not likely to take part in the crime of embezzlement relating to Nonindicted Company 5, and there is considerable possibility of criticism, such as taking the lead in the crime of manipulation of market prices of Nonindicted Company 4’s stocks at the request of Defendant 1.

However, Defendant 2 is an initial offender who has no record of criminal punishment. Damage incurred by the crime of embezzlement by Nonindicted Company 4 was recovered from all by Defendant 1, who is an accomplice, and the gain earned by Defendant 2 from the crime of embezzlement seems not significant.

3. In addition, comprehensively taking into account the following factors: Defendant 1 and Defendant 2’s age, character and conduct, environment, motive, means and consequence of the crime, various factors of sentencing as shown in the arguments in this case, such as the circumstances after the crime, and sentencing guidelines 1) 2).

Parts of innocence

1. Summary of the facts charged

around March 25, 2013, Defendant 1 and Defendant 2 concluded a contract with Nonindicted Company 5 and Nonindicted Company 6 to acquire KRW 300,220,000,000 in total and KRW 350,000,000 in total and part payments as of the same day, and pay KRW 1,350,000,000 in the balance on June 28, 2013, when they concluded a contract to acquire KRW 30,220,00 in total and KRW 350,000,000 in total and KRW 1,350,000 in total.

Defendant 1 and Defendant 2 conspired to enter into the said contract and transferred KRW 850 million to the Nonindicted Company 5’s account on March 25, 2013, but immediately returned KRW 800 million and kept it for the victim Nonindicted Company 4, and around that time, Defendant 1 and Defendant 2 embezzled KRW 800,000 for the purpose of paying interest on the stock security loan and paying KRW 280,000 to Defendant 1’s debt to Defendant 2.

2. Determination

As seen in the above 2-C., since the amount of embezzlement related to Nonindicted Co. 5 is limited to KRW 450 million, there is no proof as to the amount of profit under Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, and thus, it should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, as long as it is found that the Defendants guilty of the occupational embezzlement crime included in the above facts charged, the sentence of innocence shall not be made separately in the order.

Judges Lee Il-man (Presiding Judge)

(1) Defendant 1 constitutes concurrent crimes under the latter part of Article 37 of the Criminal Act, and thus, the sentencing criteria do not apply.

2) The scope of recommendations on the sentencing guidelines for Defendant 2) the crime of occupational embezzlement [decision on the types of recommendations] the crime of embezzlement and Misappropriation [decision on the types of punishment] the crime of embezzlement and Misappropriation, the second category (the amount between KRW 100,000 and below KRW 500,00] the mitigation element - [decision on the recommended sphere] the mitigation scope / [decision on the recommendation sphere] the mitigated scope / [decision on the recommendation sphere] the crime of violation of the Capital Markets Act [decision on the types] [decision on the types of securities and financial crimes] the crime of securities, the crime of violation of fairness in the capital market, the crime of infringing on fairness in the capital market], and the basic area [decision on the recommendation sphere] [the scope of recommendation sphere] the basic area / [the scope of punishment] the punishment of imprisonment with prison labor from June to September 2: June 6 to

심급 사건

-서울남부지방법원 2015.12.3.선고 2014고합271, 308(병합), 533(병합)

-서울고등법원 2016.6.17.선고 2016노54-1(분리)

서울고등법원 2016.6.17.선고 2016노54

-대법원 2017.1.12.선고 2016도10313

원심판결

-서울남부지방법원 2015. 12. 3. 선고 2014고합271, 2014고합308(병합), 2014고합533(병합) 판결

본문참조판례

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