Open Decision Ledger · Capital markets & finance
Constitution of joint principal offenders in conspiracy where accounts and funds were provided for market price manipulation and investors were attracted, and discretionary mitigation of the imprisonment term alone
Translated from the Korean original. Read the Korean
Supreme Court, Feb. 12, 2009, 2008Do6551 (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: 증권거래법위반
Official text on the National Law Information Center
Question
Does a person who provided securities accounts and funds for another's market price manipulation and attracted and managed investors become a joint principal offender in conspiracy, and may only the imprisonment term be subject to discretionary mitigation when an imprisonment term and a fine are imposed concurrently?
Holding
The Supreme Court held that the defendants, who provided accounts and funds and actively attracted and managed investors so that these were used for stock price manipulation, exercised functional control over the act and therefore constituted joint principal offenders in conspiracy. However, it held that imposing an imprisonment term and a fine for a single offense while applying discretionary mitigation only to the imprisonment term was unlawful, and reversed the judgment of the court below.
Points at issue, verbatim
하나의 죄에 대하여 징역형과 벌금형을 병과하는 경우, 징역형만 작량감경할 수 있는지 여부(소극)
Unofficial English translation
Where a term of imprisonment and a fine are imposed cumulatively for a single crime, whether only the term of imprisonment may be reduced by discretionary mitigation (negative)
Disposition
Reversed and remanded Stated in the decision
원심판결을 파기하고, 사건을 서울고등법원으로 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Seoul High Court.
Form of the test
Existing test applied Read from the decision
증권거래법 제188조의4 위반죄의 공모공동정범의 죄책을 인정한 사례
Unofficial English translation
a case in which the culpability of a joint principal offender by conspiracy of the crime of violating Article 188-4 of the Securities and Exchange Act was recognized
Factors
- 공모공동정범의 성립 요건
- 피고인이 공모사실과 범의를 부인하는 경우 그 증명방법
- 자기 명의의 증권계좌와 자금을 교부하였을 뿐만 아니라 적극적으로 투자자 등을 유치
- 징역형만 작량감경할 수 있는지 여부(소극)
Unofficial English translation
• Requirements for the recognition of joint principal offenders by conspiracy
• The method of proof where the defendant denies the fact of conspiracy and intent
• A person who not only handed over securities accounts and funds in his or her own name but also actively solicited investors, etc.
• Whether only the term of imprisonment may be reduced by discretionary mitigation (negative)
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2008. 7. 10. 선고 2008도3258 판결
Unofficial English translation
Supreme Court Decision 2008Do3258 decided July 10, 2008
Decisions referred to
[1] 대법원 2006. 2. 23. 선고 2005도8645 판결(공2006상, 537), 대법원 2008. 4. 24. 선고 2007도11258 판결 / [3] 대법원 2008. 7. 10. 선고 2008도3258 판결
Burden of proof
The prosecution Read from the decision
간접사실 또는 정황사실을 증명하는 방법에 의하여 이를 입증할 수밖에 없다
Unofficial English translation
it can only be proved by a method of proving indirect facts or circumstantial facts
Open question and revisit condition
May functional control over the act also be recognized, so that the person is regarded as a joint principal offender in conspiracy, where the person provided only accounts and funds in his or her own name without attracting investors?
If the provisions of the Financial Investment Services and Capital Markets Act that succeed the market price manipulation penalty provisions of the Securities and Exchange Act, or the discretionary mitigation provisions of the Criminal Act, are amended, this reading will be re-examined.
Cross-family AI independent reading & axis check
6 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-16
In comparison with an independent reading by another line of AI (GPT-6 Astra), which read only the original text without seeing the primary reading, 6 of the 8 axes matched, and the readings diverged on the 4th axis (Form of the test) and the 7th axis (Burden of proof).
Axis 4 (Form of the test): Primary “Existing test applied” vs Independent “Elements stated”
Since the original text presents both the requirements for the constitution of joint principal offenders in conspiracy and a case in which they were recognized, the primary reading may place weight on the concrete application, while the independent reading may place weight on the general requirements.
공모공동정범의 성립 요건 및 피고인이 공모사실과 범의를 부인하는 경우 그 증명방법Axis 7 (Burden of proof): Primary “The prosecution” vs Independent “Not addressed”
Since the original text addresses methods of proof where the fact of conspiracy and the intent are denied but does not specify the party bearing the burden, the primary reading may read it as the prosecution's burden of proof, while the independent reading may read it as containing no explicit reference.
간접사실 또는 정황사실을 증명하는 방법에 의하여 이를 입증할 수밖에 없다Raw 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, based on the evidence adopted by the court of first instance, found the defendants guilty of the charged facts that they conspired with Non-indicted persons and others to commit the stock price manipulation offenses, and, while imposing an imprisonment term and a fine concurrently for the violation of the Securities and Exchange Act, which constituted a single comprehensive offense, it stated only subparagraph 3 of Article 55 paragraph (1) of the Criminal Act in the column for the statutory provisions applied, and did not state subparagraph 6 of the same paragraph with respect to the fine.
Supreme Court standard: The Supreme Court accepted as proper the court below's rulings on the conspiracy, the intent, and the constitution of joint principal offenders in conspiracy, but held that the court below's application of discretionary mitigation only to the imprisonment term and not to the fine was an error in the legal principle of discretionary mitigation that affected the outcome of the judgment, and, ex officio, reversed the judgment of the court below in its entirety and remanded the case.
Distinguishing conditions
- Where indirect facts appear in the record showing that the person who provided the accounts and funds did not even contingently recognize the market price manipulation offense
- Where the person merely lent his or her name without taking any active role in the course of the offense, such as attracting and managing investors
- Where a separate special provision exists concerning discretionary mitigation of the fine, or where circumstances showing that discretionary mitigation was applied to the fine as well are confirmed in the reasons for the judgment
Record verification notes
Before asserting the same conclusion, check whether the defendant's status and role in the offense as a whole, and the degree of control over the course of the crime, amount to an essential contribution beyond that of a mere co-conspirator, and whether subparagraph 6 of Article 55 paragraph (1) of the Criminal Act was stated in the column for the statutory provisions applied by the court below.
From the official text
Points at issue
[1] 공모공동정범의 성립 요건 및 피고인이 공모사실과 범의를 부인하는 경우 그 증명방법 [2] 타인의 시세조종을 통한 주가조작 범행과 관련하여, 자기 명의의 증권계좌와 자금을 교부하였을 뿐만 아니라 적극적으로 투자자 등을 유치·관리한 사람에게 증권거래법 제188조의4 위반죄의 공모공동정범의 죄책을 인정한 사례 [3] 하나의 죄에 대하여 징역형과 벌금형을 병과하는 경우, 징역형만 작량감경할 수 있는지 여부(소극)
Unofficial English translation
[1] Requirements for the recognition of joint principal offenders by conspiracy, and the method of proof where the defendant denies the fact of conspiracy and intent [2] A case in which, in connection with the offense of manipulating stock prices through another person's manipulation of market prices, a person who not only handed over securities accounts and funds in his or her own name but also actively solicited and managed investors, etc., was held criminally liable as a joint principal offender by conspiracy of the crime of violating Article 188-4 of the Securities and Exchange Act [3] Where a term of imprisonment and a fine are imposed cumulatively for a single crime, whether only the term of imprisonment may be reduced by discretionary mitigation (negative)
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
원심판결을 파기하고, 사건을 서울고등법원으로 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Seoul High Court.
Provisions referred to
[1] 형법 제13조, 제30조, 형사소송법 제307조 [2] 증권거래법 제188조의4, 제207조의2, 제214조, 형법 제30조 [3] 형법 제53조, 제55조 제1항 제6호
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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