마약류관리에관한법률위반(향정)등
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for a term of one year and four months.
820,600 won shall be additionally collected from the defendant.
1. The sentence of the court below (one year and six months of imprisonment) against the defendant in the summary of the grounds for appeal is too unreasonable.
2. Ex officio determination
A. We examine the defendant's grounds for appeal ex officio prior to the judgment
B. Articles 157 and 153 of the Criminal Act provide that the confessions prior to the conclusion of judgment shall be mitigated or remitted, in a case where a person who committed an innocent crime surrenders himself/herself to the confessions or surrenders himself/herself before the judgment or disciplinary action on the reported case becomes final and conclusive.
Since there is no legal limitation on the above confession procedure, it is hard to view that the confession procedure as a witness of the institution dealing with the reported case or of the full bench dealing with the case as a witness of the court dealing with the reported case, not only is it clear that the previous report was a false fact but also it is included in the concept of confession by examination conducted by the court or investigation agency as the defendant or suspect of the high case.
Meanwhile, “before a judgment becomes final and conclusive” under Article 153 of the Criminal Act includes cases where a public prosecution against the accused is instituted as a result of the investigation of the accused’s accusation case, and the prosecution against the accused is instituted, and the trial procedure has not been initiated as to the accused (see Supreme Court Decision 2018Do7293, Aug. 1, 2018).
According to the records, the defendant made false information to the effect that "the defendant delivered phiphones to the J without compensation" while being examined on June 5, 2018, as stated in the facts charged in the instant case, during the investigation into the J on July 16, 2018, the defendant led to the confession of his crime without compensation in the course of the investigation into the J on July 16, 2018, and ③ the non-determination of the defendant in the instant case, and the above J has not been initiated.
Therefore, with respect to the defendant's crime of false accusation, the necessary mitigation of the punishment is required in accordance with Articles 157 and 153 of the Criminal Act.