마약류관리에관한법률위반(대마)
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for not more than ten months.
However, for a period of two years from the date this judgment becomes final and conclusive.
1. In light of all the circumstances, including the fact that the defendant committed a crime (e.g., imprisonment for 10 months, confiscation, and collection), the sentence imposed by the court below is too unreasonable.
2. The main text of Article 67 of the Act on the Control of Narcotics, Etc. provides that “narcotics, temporary narcotics, facilities, equipment, funds, or means of transport provided for any crime as prescribed by this Act and profits therefrom shall be confiscated,” prior to the judgment on the grounds of appeal by the defendant ex officio. Article 48(1)1 and 2 of the Criminal Act provides that “any goods provided or provided for, or intended to be provided for, an act of crime, or any goods produced or acquired by, a person other than the criminal, may be confiscated in whole or in part, or any goods acquired by a person other than the criminal knowing that he/she was aware of the fact after the crime.”
However, each of the items listed in the list of seized articles Nos. 2 and 3 shall be confiscated because they are urines and hairs confiscated by the defendant for the purpose of confirming whether they are administered narcotics by the defendant, not subject to confiscation under the main sentence of Article 67 of the Act on the Control of Narcotics, Etc., and they are not subject to confiscation under Article 48 (1) 1 and 2 of the Criminal Act.
In addition, the court below erred by misapprehending the legal principles on confiscation under the main sentence of Article 67 of the Act on the Control of Narcotics, etc. or Article 48 (1) of the Criminal Act, which affected the conclusion of the judgment.
Therefore, the judgment of the court below cannot be maintained as it is.
3. Accordingly, the judgment of the court below is reversed in accordance with Article 364 (2) of the Criminal Procedure Act, without examining the defendant's assertion of unfair sentencing, on the ground of the above ex officio reversal.