마약류관리에관한법률위반(향정)
The judgment below
The part concerning confiscation shall be reversed.
Seized evidence shall be forfeited from the accused.
1. The summary of the grounds for appeal (unfair sentencing) of the lower court’s punishment (an amount of imprisonment with prison labor for one year, for 30,000 won and for 10,000 won) is too unreasonable.
2. Determination
A. We examine ex officio prior to the judgment on the grounds for ex officio appeal.
The lower court sentenced the Defendant to the forfeiture referred to in subparagraphs 3 and 4 of Article 67 of the Narcotics Control Act (hereinafter “Narcotic Control Act”) pursuant to Article 67.
The main text of Article 67 of the Narcotics Control Act provides that “temporary narcotics, facilities and equipment funds, or means of transportation of narcotics, etc., which have been provided for any crime prescribed in this Act, and profits therefrom shall be confiscated.” However, they are not used for an empty one under No. 4 (Evidence No. 74) (Evidence No. 74). It is a thing separate from a disposable under No. 3 of the evidence provided for a crime under paragraph 2 of the judgment of the court below (Evidence No. 25 of the Evidence No. 25 of the Record) and thus, cannot be deemed as a “material provided” for any crime prescribed in the
Meanwhile, Article 48(1)1 of the Criminal Act provides that “goods which have been, or are to be, provided for a criminal act” as objects that may be confiscated. In order to confiscate certain goods, “goods which have been, or are to be provided for a criminal act” should be recognized as objects which have been, provided for a criminal act that is found guilty (see Supreme Court Decision 2007Do10034, Feb. 14, 2008). The above evidence No. 4 cannot be deemed as objects intended to be provided for each criminal act as stated in the judgment of the court below, regardless of whether they are those which the defendant intends to provide for a criminal act that the defendant attempted to commit.
Therefore, the part of the judgment below regarding confiscation is erroneous by misapprehending the legal principles as to Article 67 of the Narcotics Control Act or Article 48(1) of the Criminal Act, which affected the conclusion of the judgment.
B. As to the reasons for appeal, the circumstance is recognized, such as the confession and reflect of the Defendant’s crime, and the fact that the Defendant’s health is not good due to urology, etc.
However, the defendant has been punished two times for the same crime.