Defendant 1 shall be punished by imprisonment with prison labor for eight months and by imprisonment for six months.

KRW 1,450,00 from Defendant 1, and KRW 600,000 from Defendant 2 shall be collected respectively.

The provisional payment of the amount equivalent to each of the above additional charges shall be ordered.

Each sentence sentenced by the court below (Defendant 2): Imprisonment with prison labor for 8 months and additional collection of 1,450,000 won, Defendant 2: Imprisonment with prison labor for 6 months and additional collection of 600,000 won are too unreasonable.

2. Ex officio determination

Prior to the judgment on the grounds for appeal by the Defendants, Defendant 1 appealed on October 22, 2019 by having been sentenced to imprisonment with labor for the crime of interference with business, etc. at the Busan District Court, but the appellate court was sentenced to the dismissal of the appeal. The judgment became final and conclusive on February 27, 2020, Defendant 2, who was sentenced to imprisonment with labor for a violation of the Act on the Control of Narcotics, Etc. at the Busan District Court on November 21, 2019, and appealed on November 21, 2019, but the appellate court was sentenced to the dismissal of the appeal, and the above judgment became final and conclusive on February 15, 2020. As such, since each of the above offenses against the Defendants and the instant offenses are concurrent crimes under the latter part of Article 37 of the Criminal Act, in consideration of equity with the case where the judgment is to be rendered at the same time, the part of the judgment below against the Defendants was reversed.

3. Conclusion

Therefore, since the part on Defendant 1 and Defendant 2 in the judgment of the court below on the grounds of ex officio reversal as seen earlier, the part on the above Defendants among the judgment below under Article 364(2) of the Criminal Procedure Act is reversed ex officio and it is again decided as follows without examining the Defendants’ assertion on unreasonable sentencing.

【Discretionary Judgment】

Criminal facts and summary of evidence

The summary of the facts constituting an offense and evidence against the Defendants recognized by the court of appeal is as follows: "Defendant 1 was sentenced to imprisonment with prison labor for not less than ten months at the Busan District Court on October 22, 2019 and is still pending in the appellate trial as of October 22, 2019" in the first head of the judgment of the court below [criminal records]. "Defendant 1 appealed ten months from the Busan District Court on October 22, 2019, but the appellate court was sentenced to the dismissal judgment at the appellate court, and the above judgment became final and conclusive as of February 27, 2020," and "Defendant 2 is still serving in the appellate court as of November 21, 2019 after having been sentenced to imprisonment with prison labor for the same offense at the Busan District Court and for not more than one year and eight months for the same offense," and "the summary of the judgment of the court below as of October 21, 2019 to the summary of the evidence at the appellate court's judgment as of the second instance judgment."

Application of Statutes

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

Articles 60(1)2, 4(1)1, and 2 subparag. 3(b) of the Act on the Control of Narcotics, Etc. (the points of medication, receipt, and sale of philophones), and choice of imprisonment with prison labor, respectively.

1. Aggravation of repeated crimes (Defendant 2);

Article 35 of the Criminal Act

1. Handling concurrent crimes;

Articles 37 (latter part) and 39 (1) of the Criminal Act

1. Aggravation of concurrent crimes;

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

1. Additional collection:

The proviso of Article 67 of the Narcotics Control Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Reasons for sentencing

[Defendant 1]

In this case, the defendant received, administered, sold multiple phiphones, which has a significant social harm caused by addiction and scopon effects of phiphones, the amount of phiphones that were received and sold, the defendant did not have a small amount of phiphones, the defendant was punished for the suspended execution of violent crimes two times, and the defendant voluntarily surrenders himself to investigation agencies, but the defendant, who was separated from the sentence, stated the defendant's crime to the police and issued the warrant of search and seizure of the defendant, submitted a self-denunciation statement to the police. The defendant was merely a person who has no record of punishment for narcotics, and against his mistake, the defendant must consider equity with the case where he was tried along with the crime of interference with business, etc. of which judgment became final and conclusive, and other factors of sentencing as shown in the proceedings of this case, such as age, character and behavior, environment, motive, means and result of the crime of this case, and the circumstances after the crime, etc., shall be determined as the sentence as per the order.

[Defendant 2]

It is recognized that the Defendant committed the instant crime with the same criminal history three times (one suspended sentence, two times). However, the Defendant’s act of selling and selling phiphones to Co-Defendant ○○○ on July 30, 2019, unlike the written facts in the facts charged, is difficult to accept in light of the fact that Co-Defendant ○○ stated that Co-Defendant ○○ purchased 0.7g phiphones from the Defendant from the investigative agency to the trial, and that there is no dispute over such assertion. Even if such assertion is true, it is difficult to view it as a circumstance to change the sentence of the lower court, considering various sentencing factors against the Defendant, it is difficult to view it as a circumstance to change the sentence of the lower court. However, the equity should be taken into account when the Defendant was judged together with the crime of violating the Narcotics Control Act, etc. (fe.g., the Defendant’s age, character and behavior, the motive and motive of the instant crime, etc. after considering the following circumstances, etc.

Judges Kim Hong-han (Presiding Justice)