Open Decision Ledger · Capital markets & finance
The subject of the crime of breach-of-trust bribery and improper requests; whether speculatively reported information constitutes material nonpublic information and the method of calculating gains from a violation
Translated from the Korean original. Read the Korean
Supreme Court, May 12, 2006, 2004Do491 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 배임수재·증권거래법위반
Official text on the National Law Information Center
Question
Does information that was speculatively reported in some media outlets but not disclosed under the relevant statutes and regulations also constitute material nonpublic information, and how are gains obtained from the use of material nonpublic information calculated?
Holding
If the information has not yet been disclosed by the method prescribed by the Ordinance of the Ministry of Finance and Economy pursuant to the decision of the corporation, it constitutes material nonpublic information even if it was speculatively reported in the press. Gains obtained from the violation are the net trading profits, calculated by deducting the total purchase price and transaction costs from the total sales price, and are calculated to include the value of shares held and related claims.
Points at issue, verbatim
일부 언론에 추측보도된 바 있는 사실이라 하더라도 관계 법령에 따라 일반인에게 공개된 바 없는 이상 증권거래법 제188조의2에서 정하고 있는 미공개정보에 해당한다고 한 원심의 판단을 수긍한 사례 [5] 구 증권거래법 제207조의2 제1호 단서에서 정하고 있는 “위반행위로 얻은 이익”의 의미 및 그 산정 방법
Unofficial English translation
even if the fact had been the subject of speculative reporting in some media, insofar as it had never been disclosed to the general public pursuant to the relevant statutes and regulations, it fell under the undisclosed information prescribed in Article 188-2 of the Securities and Exchange Act, was affirmed [5] Meaning of "the profit obtained from the violation" as prescribed in the proviso to subparagraph 1 of Article 207-2 of the former Securities and Exchange Act and the method of calculating the same
Disposition
Dismissed Stated in the decision
상고를 기각한다.
Unofficial English translation
The appeal is dismissed.
Form of the test
Elements stated Read from the decision
미공개정보 이용행위로 얻은 이익은 그와 관련된 유가증권거래의 총 매도금액에서 총 매수금액 및 그 거래비용을 공제한 나머지 순 매매이익을 의미하고
Unofficial English translation
the profit obtained from the act of using undisclosed information means the net trading profit remaining after deducting the total purchase amount and the transaction costs thereof from the total sale amount of the securities transactions related thereto, and
Factors
- 타인의 사무를 처리하는 자
- 신임관계의 발생근거
- 부정한 청탁
- 관계 법령에 따라 일반인에게 공개된 바 없는 이상
- 위반행위로 얻은 이익
Unofficial English translation
• a person who handles the affairs of another
• the ground for the arising of a fiduciary relationship
• improper solicitation
• insofar as it had never been disclosed to the general public pursuant to the relevant statutes and regulations
• the profit obtained from the violation
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2002. 6. 14. 선고 2002도1256 판결(공2002하, 1741)
Unofficial English translation
Supreme Court Decision 2002Do1256 decided June 14, 2002 (Gong 2002 Ha, 1741)
Decisions referred to
[1][2] 대법원 2004. 12. 10. 선고 2003도6866 판결 / [1] 대법원 1999. 6. 22. 선고 99도1095 판결(공1999하, 1546), 대법원 2000. 3. 14. 선고 99도5195 판결, 대법원 2003. 2. 26. 선고 2002도6834 판결(공2003상, 950) / [2] 대법원 1988. 12. 20. 선고 88도167 판결(공1989, 205), 대법원 1998. 6. 9. 선고 96도837 판결(공1998하, 1921) / [3] 대법원 1995. 6. 29. 선고 95도467 판결(공1995하, 2676), 대법원 2000. 11. 24. 선고 2000도2827 판결(공2001상, 212) / [5] 대법원 2002. 6. 14. 선고 2002도1256 판결(공2002하, 1741), 대법원 2005. 4. 15. 선고 2005도632 판결
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
What is the general standard for attributing transactions, where transactions in which the defendant additionally purchased and sold shares of the same type after realizing profits are commingled, to the use of material nonpublic information?
We will re-examine this reading if a new Supreme Court determination is handed down concerning the successor provision to Article 188-2 of the Securities and Exchange Act or the method of calculating gains from a violation.
Cross-family AI independent reading & axis check
7 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-16
Compared with an independent reading of the original text alone, without seeing the initial reading, by another family of AI (GPT-6 Astra), 7 of the 8 axes agreed, and the readings diverged on the eighth axis (Open question and revisit condition).
Axis 8 (Open question and revisit condition): Primary “What is the general standard for attributing transactions, where transactions in which the defendant additionally purchased and sold shares of the same type after realizing profits are commingled, to the use of material nonpublic information?” vs Independent “How should the risk arising from uncertainty in the performance of a claim for transfer of shares be reflected in the appraisal of gains from the use of material nonpublic information?”
The initial reading asks about the standard for attributing subsequent transactions, while the independent reading asks about the method of reflecting the performance risk of claims for transfer of shares in the appraisal.
일부 언론에 추측보도된 바 있는 사실이라 하더라도 관계 법령에 따라 일반인에게 공개된 바 없는 이상 증권거래법 제188조의2에서 정하고 있는 미공개정보에 해당한다Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The court below regarded as the crime of breach-of-trust bribery the conduct of the defendant, a deputy head of the fund advisory team, who received a request for early redemption of convertible bonds and accepted 520,000,000 won; it also held that the fact of development to be pursued after the acquisition, speculatively reported by some media outlets, constituted material nonpublic information; and it calculated the amount of gains at 608,850,396 won and imposed a fine of 350,000,000 won.
Supreme Court standard: The Supreme Court affirmed the holding of the court below on the crime of breach-of-trust bribery and on whether the information qualified as material nonpublic information. Although the amount of gains, calculated most favorably to the defendant, was 376,648,139 won, less than the amount calculated by the court below, the Supreme Court held that, since the fine imposed fell within the lawful range of punishment, the error in the calculation did not affect the result of the judgment, and it further held that the court below's grant of leave to amend the indictment did not violate the principle prohibiting change to the defendant's disadvantage.
Distinguishing conditions
- Cases in which the transaction was carried out after the information had already been disclosed by the method prescribed by the Ordinance of the Ministry of Finance and Economy pursuant to the decision of the corporation concerned
- Cases in which no fiduciary relationship to handle affairs under the principle of good faith and fair dealing is recognized between the actor and another person
- Cases in which there are special circumstances making it difficult to appraise the value of held shares or claims for transfer of shares as of the time of the last act of disposition or the date of performance of the agreement
Record verification notes
Before asserting the same conclusion, check whether the information was disclosed through the statutory disclosure procedure, whether the costs claimed as deductions were expended in connection with the use of material nonpublic information, and whether the fact that the relinquishment of profits after the completion of the crime does not affect the calculation of the amount of gains holds equally true in the case at hand.
From the official text
Points at issue
[1] 배임수재죄의 주체로서 ‘타인의 사무를 처리하는 자’의 의미 및 신임관계의 발생근거 [2] 배임수재죄에 있어서 ‘부정한 청탁’의 의미 및 그 판단 기준 [3] 증권거래법 제188조의2에서 정한 미공개정보 이용행위금지의 대상이 되는 정보에 해당하는 경우 [4] 일부 언론에 추측보도된 바 있는 사실이라 하더라도 관계 법령에 따라 일반인에게 공개된 바 없는 이상 증권거래법 제188조의2에서 정하고 있는 미공개정보에 해당한다고 한 원심의 판단을 수긍한 사례 [5] 구 증권거래법 제207조의2 제1호 단서에서 정하고 있는 “위반행위로 얻은 이익”의 의미 및 그 산정 방법
Unofficial English translation
[1] Meaning of a person who handles the affairs of another as the subject of the crime of breach of trust and acceptance of bribes, and the ground for the arising of a fiduciary relationship [2] Meaning of "improper solicitation" in the crime of breach of trust and acceptance of bribes and the criteria for its determination [3] Cases in which information falls under the information subject to the prohibition on the use of undisclosed information prescribed in Article 188-2 of the Securities and Exchange Act [4] A case in which the court below's determination that, even if the fact had been the subject of speculative reporting in some media, insofar as it had never been disclosed to the general public pursuant to the relevant statutes and regulations, it fell under the undisclosed information prescribed in Article 188-2 of the Securities and Exchange Act, was affirmed [5] Meaning of "the profit obtained from the violation" as prescribed in the proviso to subparagraph 1 of Article 207-2 of the former Securities and Exchange Act and the method of calculating the same
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
상고를 기각한다.
Unofficial English translation
The appeal is dismissed.
Provisions referred to
[1] 형법 제357조 제1항 [2] 형법 제357조 제1항 [3] 증권거래법 제188조의2 제2항 [4] 증권거래법 제188조의2 [5] 구 증권거래법(2002. 4. 27. 법률 제6695호로 개정되기 전의 것) 제188조의2 제1항, 제207조의2 제1호
Read 2026-10-16 · Cross-read 2026-10-16. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.
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