[마약류관리에관한법률위반(향정)][미간행]
In case where all or part of the narcotics have been confiscated by the owner or the last holder in the collection under the Act on the Control of Narcotics, etc., whether the value of the confiscated narcotics can be collected from other handlers (negative)
Article 67 of the Narcotics Control Act
Supreme Court Decision 2009Do2819 Decided June 11, 2009
Defendant
Defendant
Seoul Western District Court Decision 2015No1993 decided March 25, 2016
The judgment below is reversed, and the case is remanded to the Seoul Western District Court.
1. In a case where a collection under the Narcotics Control Act pertaining to narcotics has been confiscated in whole or in part from the owner or the last holder of the narcotics, the same applies to the forfeiture of the narcotics in relation to other handlers, and thus the value of the confiscated narcotics cannot be collected from other handlers (see Supreme Court Decision 2009Do2819, Jun. 11, 2009).
2. On May 1, 2015, the lower court determined that: (a) the Defendant promised to receive KRW 16 million from the Nonindicted Party on the charge of receiving KRW 16 million from the Nonindicted Party and gave approximately KRW 167g of the Mesophical medicine to the Nonindicted Party; and (b) maintained the first instance judgment that collected KRW 16 million from the Defendant by applying the proviso to Article 67 of the Narcotics Control Act.
3. However, according to the records, the non-indicted was prosecuted for a violation of the Narcotics Control Act on the facts constituting the crime that the non-indicted possessed 167.37 g from among the philophones that the non-indicted was dried by the defendant by Ulsan District Court 2015Kadan1226, and the above court sentenced the non-indicted on July 8, 2015 to confiscate the above 167.37g of the philophones confiscated by the non-indicted, and it can be recognized that the above judgment became final and conclusive. As such, in relation to the defendant, the value of the philophones confiscated by the defendant is the same as the confiscation of the above philophones and cannot be collected additionally.
Nevertheless, the lower court erred by misapprehending the legal doctrine regarding collection of additional charges, thereby adversely affecting the conclusion of the judgment.
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 Poe-dae (Presiding Justice)