Violation of law (marijuana)

Law Firm Jin

Attorney Lee Jong-won, Kim Jong-soo, and Kim Jong-young

1. According to the records, the defendant did not appeal against the judgment of the first instance court against the judgment of the first instance, and only the prosecutor appealed against the judgment of the second instance on the ground that the punishment is too unreasonable, and only the defendant appealed against the judgment of the second instance. The court below asserted unfair sentencing on the grounds of appeal. While combining each appeal case, the court below reversed all of the judgment of the first instance and omitted the judgment on each of the judgment, and determined a new punishment against the defendant. In such cases, the argument that the punishment law against the defendant is unconstitutional cannot be a legitimate ground of appeal (see Supreme Court Decisions 2009Do579, May 28, 2009; 2017Do16593-1 (Separation) decided March 21, 2019).

2. Even in a case where the number of self-employed persons is recognized, the court may voluntarily reduce or exempt the punishment (Article 52(1) of the Criminal Act), and even if the court below did not reduce the number of persons, it cannot be deemed unlawful (see, e.g., Supreme Court Decisions 2004Do2018, Jun. 11, 2004; 2004Do2018, Jun. 11, 2004). Accordingly, the argument that the court below erred

In addition, the argument that the lower court’s determination of sentencing violates the Defendant’s right to equality constitutes an allegation of unfair sentencing. However, pursuant to Article 383 subparag. 4 of the Criminal Procedure Act, an appeal on the ground of unfair sentencing is allowed only in cases where death penalty, life imprisonment, or imprisonment with or without labor for not less than ten years has been imposed. In this case where a more minor sentence has been imposed on the Defendant, the argument that the sentence is too unreasonable

3. The grounds for the judgment of conviction should clearly state the facts constituting an offense, the summary of evidence, and the application of the law (Article 323(1) of the Criminal Procedure Act). In a case where either of them was omitted in the grounds for the judgment while sentencing a conviction, it constitutes a violation of the law that affected the judgment under Article 383 subparag. 1 of the Criminal Procedure Act and constitutes grounds for reversal (see, e.g., Supreme Court Decisions 2009Do3505, Jun. 25, 2009; 2010Do9151, Oct. 14, 2010).

According to the reasoning of the judgment below, the court below erred by violating Article 383 subparagraph 1 of the Criminal Procedure Act, since all of the judgment of the court of first instance was reversed ex officio and the judgment of the court of first instance was pronounced guilty as to the whole of the facts charged in this case, and the summary of evidence was omitted. Thus, the court below erred by violating Article 383 subparagraph 1 of the Criminal Procedure Act. The ground of appeal assigning this error is with merit.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok

Justices Noh Jeong-hee

Justices Kim Jae-hwan in charge