beta
집행유예
(영문) 서울남부지방법원 2015.10.28.선고 2015고단2980 판결

가.폭력행위등처벌에관한법률위반(공동공갈)·나.폭력행위등처벌에관한법률위반(공동상해)·다.폭력행위등처벌에관한법률위반(공동감금)·라.약사법위반

Cases

2015 Highest 2980 A. Violation of the Punishment of Violences, etc. Act (joint fight)

(b) Violation of the Punishment of Violences, etc. Act (joint injury);

(c) Violation of the Punishment of Violences, etc. Act (joint confinement);

(d) Violation of the Pharmaceutical Affairs Act;

Defendant

1. (a) . (b) . (d) A (79 years, south);

2. (a) b. (c) d. B (89 years, south);

3. C. (d) (87 years old, south)

4. (a) b. D (83 years old, south)

5. (a) . (b) E (84 years old, south);

6. F. F. (d)

7. G. (D. 92 years old, south)

8. H. (D. 91 years old, south)

Prosecutor

Kim Hong-young (Lawsuits) (Courtrooms), sporasity, and delay in gambling (Court Trials)

Defense Counsel

Law Firm (private ships for Defendant A)

Attorney Lee In-bok

Limited Liability Law Firm (private ship for Defendant B)

Attorney Lee In-bok

Law Firm (private ships for Defendant C)

Attorney Lee In-bok

Law Firm (private ships for defendant D and E)

Attorney Lee In-bok

Imposition of Judgment

October 28, 2015

Text

1. Defendant A and B shall be punished by imprisonment with prison labor for a year and two months and by a fine of KRW 20 million, by a fine of KRW 10 months and a fine of KRW 10 million, Defendant D and E by imprisonment with prison labor for six months, Defendant F, G and H by each fine of KRW 5 million.

2. In the event that Defendant A, B, C, F, G, and H fail to pay each of the above fines, the above Defendants shall be confined to the Labor House for the period calculated by converting KRW 100,000 into one day.

3.Provided, That with respect to Defendant D and E, the execution of the above sentence shall be suspended for a period of two years from the date this judgment becomes final and conclusive.

4. Articles 50 through 63, 71 through 118, and subparagraphs 1 through 49 (except subparagraphs 6, 7, 14, and 44) of the evidence of seizure from Defendant B, and from Defendant C, subparagraphs 119 through 159 of the evidence of seizure from Defendant C.

5. To order the provisional payment of an amount equivalent to each of the above fines against Defendant A, B, C, F, G, and H.

Reasons

Facts of crime

1. Violation of the Punishment of Violences, etc. Act (joint attack), violation of the Punishment of Violences, etc. Act (joint confinement), and violation of the Punishment of Violences, etc. Act (joint injury) - Joint crime committed by Defendant A, Defendant B, Defendant D, and Defendant E;

Defendant A used the victim J’s account, who is an employee of her own company, as an account for the payment of sales proceeds from the sted sales proceeds. Defendant A knew that the victim intended to withdraw the sales proceeds from the said account and to depart from the Republic of Korea, Defendant A had the victim knew that she would have attempted to depart from the Republic of Korea, and attempted to recover the sales proceeds from the sted sales proceeds and existing debts from

Defendant A, along with Defendant B and Defendant D, who carried out sted transactions, set Mak at the Incheon public port and predicted the expected movement route of the victim, and Defendant E provided the following studs: (a) detained the attached victim; and (b) provided “K located in the Gangnam-gu Seoul Eastdong, Seoul, in his business place at the place of recovery, to receive money from the victim; and (c) offered a public offering to receive money from the victim in order to do so.

피고인들은 2015. 2. 26. 16 : 00경 인천 중구 공항로 인천국제공항 출국장에서 태국으로 출국하기 위해 발권을 하러 걸어가는 피해자를 발견하자 피고인 D은 피해자에게 접근하여 오른 팔을 붙잡고, 피고인 B는 피해자의 왼 팔을 붙잡고, 피고인 A은 피해자의 목 부위를 1회 때린 후, 피고인 A이 피해자의 오른 팔을 붙잡고 피고인 D이 피해자의 왼 팔을 붙잡고 피고인 B가 피해자의 가방을 빼앗아 끌고 가는 방법으로 인천국제공항 주차장으로 이동하여 피고인 B 명의의 폭스바겐 CC 승용차의 뒷좌석의 가운데 피해자를 앉히고 그 오른쪽에 피고인 A이, 왼쪽에 피고인 B가 앉고 피고인 D이 운전석에 앉아 승용차를 출발시키고 피고인 A이 피해자에게 " 이 새끼야. ", " 씨발, 장난하 냐. ", " 니가 뭘 잘했다고 고개를 들어, 고개 처박아. " 라는 등으로 위협을 하여 피해자로 하여금 차량에서 내리지 못하도록 하였다 .

After the Defendants were detained the victim on the vehicle as above, at around 18:00 on the same day, they moved to the 'K 'K' where Defendant E working at the business president in Gangnam-gu Seoul, Seoul, leaving the victim out of the victim's inside, take the victim out of the victim's inside, take the victim's passport, cell phone, etc., take the victim out of the victim's inside, take the victim's face, take the victim's face, etc., take the victim's passport into consideration, take the victim's face, take the victim's passport from the victim's face, take the victim's passport from the victim's inside, take the victim's inside, and take the victim's face from the victim's face from the victim's 0th, take the victim's face from the victim's 0th, exchange the victim's face with the victim's face to the victim's 6th, and take the victim's face from the victim's face to the victim's face.

Defendant A and Defendant B continued to leave 20: at around 30 20 days on the same day and on the back side of the above halogCC car with the threat of the above Defendants, Defendant A seated on the back of the above halogus, Defendant B got out of the driver’s seat so that the victims could not get out of the vehicle, and move to the seat of the victim at around 21:0 :00 on the same day, Defendant B moved possession of the victim’s wall, etc. to the seat of Defendant B residing in the Gucheon-si, and stored the victim in the front room and sent money promptly to the victim, and Defendant A was delivered the victim’s money to 0:0 on the day when the victim was sent to the house, and Defendant B was delivered the victim’s money to 1:0 on the same day by having the obligee take out the 5th day of 7th day of notarial deed by getting the victim out of 00,000,000,000 won.

As a result, the Defendants jointly obtained the amount of monetary benefits equivalent to the amount of the said amount by having the victim prepare a notarial deed of monetary loan contract for consumption loan contract for 24,000,000 won, and detained the victim for about 26 hours.

2. A person who intends to import drugs, etc. in violation of the Pharmaceutical Affairs Act due to import of drugs, shall obtain permission or report from the Minister of Food and Drug Safety by item;

A. Defendant A, Defendant B, and Defendant C, together with each other, purchased drugs, such as sate medicine, in the Thailand and sold them into the Republic of Korea; Defendant A had the intent to provide financing, inventory management, and order management; Defendant C had the purchase of drugs, such as sate medicine, in the Thailand and carried them into the Republic of Korea; Defendant C had the role of selling them into the Republic of Korea; Defendant C had the role of selling the drugs, such as sate medicine, in which Defendant B had the sated; Defendant B had the intention to sell them into the Republic of Korea; Defendant F, G, and H had the intention to sate the drugs, such as sate medicine, in the Thailand by pretending them to tourists.

The Defendants conspired to obtain permission from the Minister of Food and Drug Safety or did not report as above, and Defendant C purchased the ice medicine from a person whose name is unknown in Thailand on November 201, 2013, and entered the said medicine through the Incheon International Airport on the 5th day of the same month, as well as imported the medicine, including the ice medicine in total of 22 times from August 4, 2014 to August 4, 2014, including the sum of 243,262,00 won, as shown in attached Table 1.

B. The criminal conduct committed by Defendant A and Defendant B

Defendants conspired to import drugs, such as stephoids, as described in paragraph (1) above, without obtaining permission from the Minister of Food and Drug Safety or filing a report, and purchased drugs, such as stephoids, from a person whose name in Thailand is unknown, and entered the said drugs via the Incheon International Airport on December 23, 2014, and imported drugs worth KRW 39,082,00 in total,00 by holding the said drugs, respectively, using the same method as on April 23, 2015 and June 19, 2015.

C. Defendant G’s crime

Defendant G conspiredd to import the drugs, such as Switzerland, as described in Section C, F, H and the above Section 2-A, without obtaining permission from the Minister of Food and Drug Safety or filing a report, Defendant G and C purchased from a person whose name in Thailand is unknown on November 201, 2013, and imported drugs, such as stedydydydydys, etc., from that time on July 7, 2014, including that Defendant G and C purchased from a person whose name in Thailand is unknown, through the Incheon International Airport on November 11, 2013.

D. Defendant F and Defendant H’s conspiracy

Defendant F and Defendant H conspired to import drugs, such as Switzerland, as described in Section C, G and the above Section B-A, without obtaining permission or filing a report with the Minister of Food and Drug Safety. Defendant F and G purchased from a person whose name in Thailand is unknown on January 1, 2013, and imported drugs, such as Switzerland, via the Incheon International Airport on January 10, 2014, including having entered the said drugs from July 7, 2014, in total of 15 times, including 187, 262,00 won, from that time, as listed in Section 3 of the List of Crimes.

3. Violation of the Pharmaceutical Affairs Act due to sale of medicines;

No person other than a pharmacy founder may sell drugs or acquire them for the purpose of selling them.

A. The criminal conduct committed by Defendant A and Defendant B

Defendant A and Defendant B conspired to sell drugs, such as stedys, carried in as described in Section C and B, to sell them in the Republic of Korea on December 27, 2013, and sold drugs equivalent to KRW 5,60,000 from that time to June 24, 2015, including sales of drugs equivalent to KRW 5,60,00,00, such as stedys, to a person whose name is unknown (name N) at a stedys site on December 27, 2013.

B. Defendant C’s crime

Defendant C conspiredd to sell drugs, such as ices, carried in as described in Section A, B, and 2, to sell them in the Republic of Korea on December 27, 2013, and sold drugs equivalent to KRW 5,600,000, such as ices, to a person (name E) whose name is unknown, and from that time, to August 31, 2014, including sales of drugs equivalent to KRW 331,85,000 in total over 203 times, as shown in Appendix 5.

Summary of Evidence

Omission

Application of Statutes

1. Article applicable to criminal facts;

○ Defendant A: Articles 2(2) and 2(1)3 of the Punishment of Violences, etc. Act; Articles 2(2) and 257(1)3 of the Criminal Act; Articles 2(2) and 2(1)3 of the Punishment of Violences, etc. Act; Article 350(1) of the Criminal Act (joint conflict; choice of imprisonment); Articles 2(2) and 2(1)2 of the Punishment of Violences, etc. Act; Article 276(1)5 of the Criminal Act (joint confinement; choice of imprisonment); Article 93(1)5 of the Pharmaceutical Affairs Act; Article 42(1) and 93(2) of the former Pharmaceutical Affairs Act (Amended by Act No. 1314, Jan. 28, 2015); Article 30(1)3 of the Criminal Act; Article 350(1)(2) of the Punishment of Violences, etc. Act (amended by Act No. 13110, Mar. 1, 2013).

Defendant B: Articles 2(2) and 2(1)3 of the Punishment of Violences, etc. Act; Articles 2(2) and 257(1)3 of the Criminal Act; Articles 2(2) and 2(1)3 of the Punishment of Violences, etc. Act; Article 350(1) of the Criminal Act (joint conflict; choice of imprisonment); Articles 2(2) and 2(1)2 of the Punishment of Violences, etc. Act; Article 276(1)5 of the Criminal Act (joint confinement; choice of imprisonment); Article 93(1)5 of the Pharmaceutical Affairs Act; Article 42(1) and 93(2) of the former Pharmaceutical Affairs Act (Amended by Act No. 1314, Jan. 28, 2015); Article 30(1)3 of the Criminal Act; Article 350(1)(2) of the Punishment of Violences, etc. Act (amended by Act No. 13114, Feb. 13, 2017); Article 301 of the Criminal Act

Defendant C: Comprehensively, Articles 93(1)5, 42(1), and 93(2) of the former Pharmaceutical Affairs Act (Amended by Act No. 1314, Jan. 28, 2015); Article 30 (Concurrent Imposition of Imprisonment and Fines) of the Criminal Act (Article 93(1)7, 44(1), and 93(2) of the former Pharmaceutical Affairs Act (Amended by Act No. 1314, Jan. 28, 2015); Article 30 (Concurrent Imposition of Imprisonment and Fines) of the Criminal Act

○ Defendant D and E: Articles 2(2) and 2(1)3 of the Punishment of Violences, etc. Act, Article 257(1) of the Criminal Act (the point of joint injury, the choice of imprisonment), Articles 2(2) and 2(1)3 of the Punishment of Violences, etc. Act, Article 350(1) of the Criminal Act (the point of joint conflict, the choice of imprisonment), Articles 2(2) and 2(1)2 of the Punishment of Violences, etc. Act, Article 276(1) of the Criminal Act (the point of joint confinement, the choice of imprisonment, and the choice of imprisonment)

○ Defendant F, G, and H: Each inclusive of the following: Articles 93(1)5 and 42(1) of the former Pharmaceutical Affairs Act (Amended by Act No. 13114, Jan. 28, 2015); Article 30 of the Criminal Act (the fact of importing medicines not reported, the selection of fines, etc.)

1. Aggravation for concurrent crimes;

○ Defendant A, B, and C: the former part of Article 37 of the Criminal Act, Article 38(1)2 and 3, Article 50 of the Criminal Act, Article 38(1)2 and 50 of the same Act, Article 37 former part of Article 37 of the Criminal Act, Article 38(1)2, and Article 50

1. Detention in a workhouse (Defendant A, B, C, F, G, and H);

Articles 70 and 69(2) of the Criminal Act

1. Suspension of execution (Defendant D and E);

Article 62 (1) of each Criminal Code (The following favorable circumstances shall be considered among the reasons for sentencing)

1. Confiscation (Defendant A, B, and C);

Article 48(1)1 of the Criminal Act

1. A provisional payment order (Defendant A, B, C, F, G, and H);

Article 334(1) of the Criminal Procedure Act

1. Defendant A and B

(a) Class A crime of Article 1 of the Sentencing for Defendant A (1)

[Scope of Recommendation] General In the context of Category 1 (Bodily Injury) (Special Mitigation (Aggravated Punishment) (Special Mitigation (Aggravated Punishment)), Article 1 (Aggravated Punishment) (Aggravated Punishment) (Aggravated Punishment) or Article 2 (Aggravated Punishment) where considerable damage is recovered / Where the person led or led the commission of the commission of the commission of the crime (Aggravated Punishment)

[Extent of Recommendation] General Public Conflict> Class 2 (at least 30 million won, less than 100 million won) Special mitigation Zone (at least 2 months to 100 million won)

[Special mitigation (Aggravation)] Where the degree of public conflict is weak, and where the exercise of the right is made as a means of exercising the right, a failure to punish or a significant damage has been restored / Where the crime was led or led.

(3) 3 Crimes (Arrest, confinement, abandonment, abuse)

[Scope of Recommendation] General Criteria for Arrest and Confinement (General Arrest and Confinement)

[Special mitigation (Aggravation) In a case where the degree of arrest and confinement is minor, where the victim is released to a safe place due to the motive for the crime to be taken into account, the victim is not subject to punishment (including serious efforts to recover damage), / Where the principal offender led or led the crime (excluding types 3) 4 and 5 (Crimes of Violation of the Pharmaceutical Affairs Act): No sentencing guidelines are set. (5) The final sentencing guidelines are set. (5) The scope of punishment due to the aggravation of multiple offenses: imprisonment for not less than 4 months (the first or 3 crimes on which the sentencing guidelines are set and the fourth or fifth crimes on which the sentencing guidelines are not set and the first sentence of Article 37 of the Criminal Act are set. As such, the sentencing guidelines set forth for the first or 3 crimes are established between the fourth or fifth crimes on which the sentencing guidelines are set and the fourth or fifth crimes on which the sentencing guidelines are not set.)

B. Class 1 crime in the recommended sentencing guidelines against Defendant B (1)

[Scope of Recommendation] General In the area of mitigation (two months to one year), (including a serious effort to recover damage), or where considerable damage has been restored to a mitigation area (two months to one year), (including a special mitigation), or (including a serious effort to recover damage).

(2) No. 2 (Competence)

[Scope of Recommendation] Special mitigation Zone of Type 2 (not less than KRW 30 million, less than KRW 100 million) (No more than KRW 30 million, less than KRW 100 million)

[Special Mitigations] If the degree of public conflict is weak, or if the action was taken as a means of exercising the right, a penalty is not granted or a significant damage is recovered.

(3) 3 Crimes (Arrest, confinement, abandonment, abuse)

[Scope of Recommendation] General Criteria for Arrest and Confinement (General Arrest and Confinement)

[Special mitigated] Where the degree of arrest and detention is minor, if the victim is released to a safe place due to the motive for the crime, the motive for the crime to be considered, and the victim is released to a safe place, the scope of the final sentence due to the aggravation of multiple offenses (including serious efforts to recover damage) (4) 4 and 5 (Violation of the Pharmaceutical Affairs Act) 5 (5) : the case where the concurrent offenses under the former part of Article 37 of the Criminal Act are established between the crimes of paragraphs 1 and 3 set out in the sentencing guidelines and the crimes of Articles 4 and 5 for which no sentencing guidelines are set (the lower limit set in the sentencing guidelines for the crimes of paragraphs 1 and 3 set forth in the sentencing guidelines is set).

(c) Determination of sentence;

The fact that the Defendants agreed with the victims of the instant joint injury, joint conflict, and joint confinement and the victim does not want punishment against the Defendants. In relation to the crime of violation of the Pharmaceutical Affairs Act, considerable amount of medical and sales proceeds of the instant drugs possessed by the Defendants were seized, and the Defendants were in depth divided by recognizing the instant crime, and Defendant A did not have any history of criminal punishment except for a fine once, and Defendant B appears to have had no history of criminal punishment, and Defendant B’s family members and son continued to submit a written application for a shot in which they complained of the Defendant’s wife.

However, since most of the drugs of this case imported and sold by the Defendants are classified as subject to regulation, there is a high risk of misuse and abuse, such as fatal side effects on the human body, so that handling of non-professionals like the Defendants may cause serious harm to the people's health. The amount of the drugs of this case imported by the Defendants without permission or report is equivalent to approximately KRW 280,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000, more than one year and six months, and the Defendants are more likely to be subject to criticism in light of the fact that the Defendants used the passbook and phones, shared their roles with accomplices, and carried out each crime systematically and closely.

2. Defendant C

From among the crimes of violating the Pharmaceutical Affairs Act, the Defendant voluntarily withdraws from the public recruitment relationship (in this regard, unlike Defendant A and B, the penal provisions of the Pharmaceutical Affairs Act prior to the amendment of the statutory penalty, which was not a penal provision of the amended Pharmaceutical Affairs Act, which was not a penal provision of the same Act, was applied to the punishment of the statutory penalty, unlike Defendant A and B), recognized the crime of this case and divided the mistake in depth, there is no record of crime exceeding the fine, and it seems that social ties are very

However, in light of the fact that the defendant did not merely have actively participated in the crime of violation of the Pharmaceutical Affairs Act that was committed in a systematic and consistent manner, the amount of medicine imported and sold by the defendant, the amount of sale, and the amount of profit, and the fact that the defendant actively participated in the crime of violation of the Pharmaceutical Affairs Act, it is necessary to strictly punish the defendant.

3. Defendant D, E

(a) Group 1 crime (1) within the scope of recommendations on the sentencing criteria;

[Scope of Recommendation] In general cases where the mitigation area (two months to one year) [Special Mitigation] is not subject to punishment (including serious efforts to recover damage) or considerable part of damage is restored to the mitigation area (two months to one year).

(2) No. 2 (Competence)

[Extent of Recommendation] General Public Conflict> Class 2 (at least 30 million won, less than 100 million won) Special mitigation Zone (at least 2 months to 100 million won)

[Special Mitigations] If the degree of public conflict is weak, or if the action was taken as a means of exercising the right, a penalty is not granted or a significant damage is recovered.

(3) 3 Crimes (Arrest, confinement, or abandonment abuse)

[Scope of Recommendation] General Criteria for Arrest and Confinement (General Arrest and Confinement)

[Special mitigated] In a case where the degree of arrest and detention is minor, if the victim is released to a safe place due to the motive for the crime, the motive for the crime that may be considered, and if the victim is released to a safe place, the scope of the final sentence due to the aggravation of multiple crimes (including serious efforts to recover damage): 2 months to 20 October 20.

(b) Determination of sentence;

In light of the fact that Defendant D threatens a victim by threateninging the victim’s passport, etc. and Defendant E took part in a direct action, such as assaulting the victim’s head and face, it is necessary to punish the Defendants strictly.

However, considering the favorable circumstances, such as the fact that the Defendants did not want punishment against the Defendants by mutual consent with the victims, the Defendants recognized the instant crime and reflect the Defendants, the Defendants did not have any criminal power, and the fact that the social ties relation seems to be publicly announced.

4. Defendant F, G, and H

The defendants recognize all of the crimes of this case and repent, and all of the defendants are first offenders with no criminal power, and the defendants are simply included in the import of the drugs of this case, considering favorable circumstances.

5. Conclusion

All of the sentencing conditions in the instant case, including the aforementioned various circumstances and the Defendants’ age, character and conduct, environment, and the background and result of the instant crime, shall be determined as ordered in full view of all the sentencing conditions in the instant case.

Judges

Judges Sohion