마약류관리에관한법률위반(향정)
The judgment of the court below is reversed.
Defendant
J and K shall be punished by imprisonment of one year and four months, and by imprisonment of one year and one year.
Summary of Grounds for Appeal
The misunderstanding of facts and misapprehension of legal principles (Defendant K) voluntary behavior and emergency arrest against the defendant are illegal due to lack of the requirements, and the evidence collected in the state of illegal emergency arrest is inadmissible as evidence collected without due process and evidence collected without due process.
If it is excluded from evidence obtained illegally as evidence, it should be pronounced not guilty on the ground that there is no evidence to acknowledge the facts charged of this case or there is no evidence to prove only the defendant's statement (self-written confession) in the court below.
The sentence of the lower court against the Defendants on unreasonable sentencing (the Defendants J. 1 and 6 months of imprisonment; Defendant A; Defendant A; Defendant A; Defendant A; Defendant A; Defendant K; Defendant K; Defendant K; Defendant K; Defendant K; 1 year and 6 months of imprisonment and 2.3 million won of confiscation and collection) is unreasonable.
Judgment
With regard to the assertion of misunderstanding of facts and misapprehension of legal principles, the evidence collected without following the procedures prescribed by the relevant legal principles and the Criminal Procedure Act, as well as the secondary evidence obtained based on this is not in compliance with the legitimate procedures prepared to guarantee fundamental human rights, and thus, cannot be used as evidence of conviction in principle.
However, in determining whether to recognize admissibility of illegally collected seized articles, all circumstances related to the procedural violation committed in the course of evidence collection by an investigative agency, namely, the purport of the procedural provision and its content and degree of violation, specific course and possibility of avoidance, nature of the right or legal interest to be protected, degree of infringement, relation between the defendant and the defendant, degree of causal relationship between the procedural violation and the collection of evidence, and awareness and intent of the investigative agency, etc., are cases where the procedural violation by the investigative agency infringes on the substantive contents of due process.