Open Decision Ledger · Capital markets & finance
Whether a counterparty to an oral contract qualifies as a user of undisclosed material information, and the time at which material information is generated
Translated from the Korean original. Read the Korean
Supreme Court, Feb. 27, 2014, 2011Do9457 (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·특정경제범죄가중처벌등에관한법률위반(배임)
Official text on the National Law Information Center
Question
Does a person who has concluded an oral contract with a corporation, but who has not satisfied the requirements for the contract to take effect, also fall under 'a person who has concluded a contract with the relevant corporation' in Article 188-2, paragraph (1), subparagraph 4 of the former Securities and Exchange Act?
Holding
A person who has concluded a contract with a corporation and thereby occupies a position affording easy access to undisclosed material information falls under 'a person who has concluded a contract' even if the contract has not satisfied procedural requirements or was made orally. However, a person who has gone no further than negotiating the conclusion of a contract does not fall under this category, and material information is deemed to have been generated at the time it has been concretized to the point that a reasonable investor would regard it as having significant value.
Points at issue, verbatim
위 계약의 효력이 발생하기 위한 절차적 요건을 갖추지 아니한 경우, 구 증권거래법 제188조의2 제1항 제4호 ‘당해 법인과 계약을 체결하고 있는 자’에 해당하는지 여부(적극)
Unofficial English translation
Where the procedural requirements for the contract to take effect have not been satisfied, whether one falls under 'a person who has entered into a contract with the relevant corporation (juristic person)' in Article 188-2, paragraph (1), subparagraph 4 of the former Securities and Exchange Act (affirmative)
Disposition
Dismissed Stated in the decision
상고를 모두 기각한다.
Unofficial English translation
All appeals are dismissed.
Form of the test
Elements stated Stated in the decision
계약 체결을 교섭하는 정도에 그친 경우에는 이에 해당하지 아니할 것이지만 위 계약이 구두에 의하여 이루어졌다고 하여 달리 볼 것은 아니다.
Unofficial English translation
Where the matter is limited to the stage of negotiating the conclusion of a contract, one would not fall under this, but the fact that the contract was made orally does not warrant a different view.
Factors
- 법인의 미공개 중요정보에 용이하게 접근하여 이를 이용할 수 있는 지위에 있다고 인정되는 자
- 위 계약의 효력이 발생하기 위한 절차적 요건을 갖추지 아니한 경우
- 위 계약이 구두로 이루어진 경우에도 마찬가지인지 여부(적극)
- ‘미공개정보 이용행위 금지’의 대상인 중요정보의 생성 시기
Unofficial English translation
• A person who is recognized as being in a position to easily access the undisclosed material information of a corporation (juristic person) and to use it
• Where the procedural requirements for the contract to take effect have not been satisfied
• Whether the same applies even where the contract was made orally (affirmative)
• The time at which material information, which is the subject of the 'prohibition on the use of undisclosed information', is generated
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2010. 5. 13. 선고 2007도9769 판결
Unofficial English translation
Supreme Court Decision 2007Do9769 decided May 13, 2010
Decisions referred to
[1] 대법원 2010. 5. 13. 선고 2007도9769 판결(공2010상, 1169) / [2] 대법원 2008. 11. 27. 선고 2008도6219 판결(공2008하, 1840), 대법원 2009. 7. 9. 선고 2009도1374 판결(공2009하, 1374), 대법원 2009. 11. 26. 선고 2008도9623 판결(공2010상, 65)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
By what circumstances is the stage of negotiating the conclusion of a contract distinguished from the stage at which a legally binding oral contract has been formed?
If the interpretation or the provision concerning the scope of persons who have concluded a contract under Article 174, paragraph (1), subparagraph 4 of the Financial Investment Services and Capital Markets Act changes, this reading will be checked again.
Cross-family AI independent reading & axis check
8 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-16
When compared with an independent reading by another AI (GPT-6 Astra), which read only the original text without seeing the initial reading, all eight axes matched.
Raw 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 found that an oral agreement to halt a hostile takeover on the premise of payment of consideration under a management advisory services contract had been formed with legal binding force no later than August 24, 2008, that the counterparty thereto was Non-indicted 1 company, and that information had been generated around that time which was concretized to the point of having significant value from the standpoint of a reasonable investor. The court below further found that the conclusion of the advisory services contract in this case constituted an act of breach of trust, that Defendants 1 and 2 were joint principal offenders who actively participated therein, and that the money itself paid in the name of advisory fees constituted the amount of the act of breach of trust.
Supreme Court standard: The Supreme Court held that the court below's determination that the term 'contract' encompasses oral contracts involved no misapprehension of legal principles or violation of the principle of legality in criminal law, and, finding that the court below's determinations concerning the time at which the material information was generated, the act of breach of trust, joint principal offenders, and the calculation of the amount of the act of breach of trust were also in accordance with established legal principles, dismissed the final appeals in their entirety.
Distinguishing conditions
- Where the parties did not reach a legally binding agreement and went no further than negotiating the conclusion of a contract
- Where the transaction was carried out at a time when the information at issue had not yet been concretized to the point of having significant value for the decision-making of a reasonable investor
- Where the true counterparty to the oral agreement is assessed not to be the listed company but a third party, such as an individual shareholder
Record verification notes
Before asserting the same conclusion, one should first check whether the oral agreement was formed to the extent of having legal binding force, whether its counterparty can be regarded as the listed company, and whether the information had already been concretized at the time of the transaction.
From the official text
Points at issue
[1] 법인과 계약을 체결함으로써 그 법인의 미공개 중요정보에 용이하게 접근하여 이를 이용할 수 있는 지위에 있다고 인정되는 자가 위 계약의 효력이 발생하기 위한 절차적 요건을 갖추지 아니한 경우, 구 증권거래법 제188조의2 제1항 제4호 ‘당해 법인과 계약을 체결하고 있는 자’에 해당하는지 여부(적극) 및 위 계약이 구두로 이루어진 경우에도 마찬가지인지 여부(적극) [2] 구 증권거래법 제188조의2에서 정한 ‘미공개정보 이용행위 금지’의 대상인 중요정보의 생성 시기
Unofficial English translation
[1] Whether a person who, by entering into a contract with a corporation (juristic person), is recognized as being in a position to easily access the undisclosed material information of the corporation (juristic person) and to use it, falls under 'a person who has entered into a contract with the relevant corporation (juristic person)' in Article 188-2, paragraph (1), subparagraph 4 of the former Securities and Exchange Act, where such person has not satisfied the procedural requirements for the contract to take effect (affirmative), and whether the same applies even where the contract was made orally (affirmative) [2] The time at which material information, which is the subject of the 'prohibition on the use of undisclosed information' prescribed in Article 188-2 of the former Securities and Exchange Act, is generated
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 모두 기각한다.
Unofficial English translation
All appeals are dismissed.
Provisions referred to
[1] 구 증권거래법(2007. 8. 3. 법률 제8635호 자본시장과 금융투자업에 관한 법률 부칙 제2조로 폐지) 제188조의2 제1항 제4호(현행 자본시장과 금융투자업에 관한 법률 제174조 제1항 제4호 참조), 제207조의2 제1항 제1호(현행 자본시장과 금융투자업에 관한 법률 제443조 제1항 제1호 참조) [2] 구 증권거래법(2007. 8. 3. 법률 제8635호 자본시장과 금융투자업에 관한 법률 부칙 제2조로 폐지) 제188조의2(현행 자본시장과 금융투자업에 관한 법률 제174조 참조), 제207조의2 제1항 제1호(현행 자본시장과 금융투자업에 관한 법률 제443조 제1항 제1호 참조)
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.
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