[마약류관리에관한법률위반(향정)][공2017상,837]
Matters to be considered when estimating and finding guilty of the duration of medication on the basis of only the results of the Maternation test for narcotics.
In order to clarify the substance of the medication of narcotics, the maternity test can serve as an external factor, such as the test condition. The method of estimating the duration of the medication based on the results is premised on the fact that the growth rate of the medication is fixed. However, there are many differences depending on an individual, and there is a problem that even if the same person is in fact, it is difficult for the same person to trust the accuracy due to the combination of the hair at the growth period, the suspension period, and the early departure stage. Furthermore, in light of the characteristics of the medication of narcotics, it is difficult to deny the possibility of medication several times during that period, deeming the period of the medication as the time of the crime for which a prosecution was instituted based on the said method as the time of the crime can significantly interfere with the defendant’s exercise of right to defense, and it is difficult to judge only the scope of double prosecution or double s judicata, which constitutes a separate crime, based on the nature of the substance of the medication.
Article 254(4) of the Criminal Procedure Act, Article 2 subparag. 3(b) of the Narcotics Control Act, Article 4(1)1 of the same Act, and Article 60(1)2 of the same Act
Supreme Court Decision 2011Do11817 Decided April 26, 2012
Defendant 1 and one other
Defendant 1 and Prosecutor
Seoul Central District Court Decision 2016No2411 Decided December 8, 2016
All appeals are dismissed.
The grounds of appeal are examined.
1. As to the Prosecutor’s Grounds of Appeal
In order to clarify the substance of the medication of narcotics, the crypt test may serve as an external factor such as the test condition. The method of estimating the duration of the medication based on the results is premised on the fact that the growth rate of the medication is fixed. However, there are many differences depending on an individual, and even if the same person is in fact, there is a problem that it is difficult for him to trust the accuracy of the medication due to the mixture of hairs at the growth stage, suspension period, and early departure stage. Furthermore, in light of the fact that it is difficult to deny the possibility of administration several times of the administration due to the characteristics of the medication of narcotics, etc., recognizing the possible administration period based on the aforementioned method as the time of the crime for which a prosecution was instituted can significantly interfere with the defendant’s right to defense, and it is difficult to determine the effect of double indictment or double s judicata based on the nature of the substance of the medication, etc., which constitutes a separate crime at each time.
The lower court found Defendant 2 not guilty on the ground that there was no proof of criminal facts as to the facts charged in the instant case against Defendant 2, on the following grounds: (a) the time when the instant Defendant administered phiphones solely on the basis of the results of the maternity appraisal with respect to Defendant 2 was insufficient to specify that the time from October 3, 2014 to October 13, 2014 as indicated in the facts charged in the instant case; and (b) furthermore, on the grounds that there was no proof of
Examining the reasoning of the lower judgment in light of the foregoing legal doctrine and the record, the lower judgment is justifiable. In so determining, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the
2. As to Defendant 1’s ground of appeal
Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court was justifiable to have found Defendant 1 guilty on the grounds indicated in its reasoning. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the
In addition, the argument that emergency arrest is illegal among the grounds of appeal is filed only when it reaches the final appeal, and thus, it cannot be a legitimate ground of appeal. In addition, even upon examining records, Defendant 1’s emergency arrest on December 7, 2015 is not a voluntary withdrawal from the police, but when there was a co-offender at the scene of the crime, and thus, there is no illegality as otherwise alleged in the grounds of appeal.
3. Conclusion
Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kwon Soon-il (Presiding Justice)