The summary of the acquittal part in this judgment shall be publicly notified.

The defendant's appeal is dismissed.

A. Defendant

The punishment of the court below (one year of imprisonment, one hundred thousand won of collection) is too unreasonable.

(b) Public prosecutor (not guilty part);

D It is recognized that the defendant made a consistent statement on the date and time of purchasing campones from the defendant (hereinafter referred to as 'camphones') or on the defendant's situation and location, etc. However, D has made a statement at the court of the court below because it has led to a confession of purchase of camphones from the defendant while being subject to criminal punishment, so the credibility of the statement is high, and at the investigation stage, it has made a statement without due care on the date and time of purchase of camphones, but the defendant has denied the sale of camphones, and only made a statement at the court of the court below

Nevertheless, the lower court rendered a not guilty verdict of this part of the facts charged on the ground that D’s statements are not reliable, and the lower court erred by misapprehending the legal principles.

2. Ex officio determination

The prosecutor changed the date and time of the crime from May 7, 2017 to May 5, 2017, from " around 14:00" to " around May 5, 2017," and applied for the amendment of an indictment with the content of "3.23 g" from "3.2g". This court permitted this and changed the subject of the adjudication, so the part of the judgment of the court below's non-guilty can no longer be maintained: Provided, That since the issue of the content and judgment of the facts charged is substantially the same, the prosecutor's appeal is still subject to the judgment of the court.

3. Judgment on the prosecutor's assertion of mistake of facts (not guilty part)

A. Summary of the revised facts charged

On May 5, 2017, the Defendant, at the entrance of the building C, sold psychotropic drugs, to D, approximately 3.23 g of psychotropic drugs, and to promise to receive KRW 1.5 million at the price thereafter.

B. Judgment of the court below

In full view of the following circumstances admitted by the evidence duly admitted and investigated, the lower court determined that it is difficult to believe that D’s statement appears consistent with the facts charged and the remaining evidence, such as telephone conversations, submitted by the prosecutor, cannot be deemed to have been proven beyond a reasonable doubt.

(1) At around 21:10 on May 8, 2017, D stated that D purchased a phiphone from the Defendant on May 7, 2017, on the apartment located in Isan City, due to possession and medication of phiphones, and that 3.14 g and injection equipment were found at the site of phiphones. After that, D stated that the Defendant purchased the phiphones possessed and administered by the police on May 10, 2017 from the Defendant on May 7, 2017 at 2:3:5,00,00,000,000,000,000,000,000: (1) on May 7, 2017, 2017; (2) on May 15, 2017, the Defendant made a statement that he was 1,000,000,0000,000,000).

(2) Since D made a statement from May 5, 2017 to May 7, 2017 at the time when 5, 2017, which claimed that it was the date of purchase of phiphones from the Defendant, at the time when 5 days have not elapsed since it was made by the police, it seems that D used to accurately memory the date of purchase of phiphones. Also, D specified as Sundays by the first police until the date when it was purchased from the police, and presented a specific basis for its purchase by stating that phiphones were purchased on May 7, 2017 before her emergency arrest.

(3) However, at the court of the lower court on July 10, 2017, D stated to the same effect as the date on which D purchased phiphones from the Defendant, on May 7, 2017, on which the date on which the prosecutor made a statement to inquire about the authenticity of the protocol prepared by the investigative agency, and the date on which D purchased phiphones from the Defendant was stated to the same effect.

(4) In addition, D, while the police, stated that the Defendant was forced to take a philopon from the outside of the room, while in the court of the court of the court below, it asked whether the Defendant called the Defendant on May 5, 2017 and asked for a philopon from the opening of the bus terminal to the Defendant, and called the Defendant as the office of the Defendant. Accordingly, at the bus terminal, the Defendant called the Defendant again from the bus terminal to the C building, and the Defendant did not find the Defendant at the arrival of the C building. After that, the Defendant called the Defendant to get off from the outside corridor, and received the philopon from the Defendant, and then the background and the statement on the philopon was different from the content stated by the police.

(5) At the court of the court below, D had the police station engage in an investigation upon being detained by committing a crime for narcotics during the safe period of time. The defendant tried to assist the defendant in his/her situation. Since the defendant was aware that he/she is not a person related to narcotics, he/she was expected to help him/her to provide information on narcotics, and at the time he/she did not request the defendant to do so at that time. However, D heard at the police that he/she would know that he/she would be aware of the fact that he/she would be a 'F', and asked F on May 5, 2017 that he/she would be a 'F' and asked F to ask him/her about whether he/she will be a 'F' and that he/she would be a 'F'. In other words, D was able to take notes only on May 5, 2017, and it is difficult to request the defendant to purchase the phone from May 27, 2017.

(6) Furthermore, according to D’s statement, D asked the Defendant to seek a penphone in an urgent situation, and confirmed it by telephone from the invasion. In such a situation, D’s statement in the court of the court below that D was in a room where the Defendant was not able to appear without immediately finding the Defendant or confirming the location of the Defendant by telephone is difficult.

(7) As seen earlier, D initially stated that the Defendant purchased phiphones from the police on May 7, 2017 from the Defendant, but on that day, it appears to have changed its statement in line with the monetary content with the knowledge that it does not have any telephone conversations between itself and the Defendant. However, the Defendant was working to manage a charge in C-building underground parking lot, and D had an office and a lodging in C-building, thereby making it easy for the Defendant to have a telephone easily even without telephone. If D purchased phiphones from the Defendant, it appears that there was no reason to change the statement in line with the monetary content.

C. Judgment of the court below

In a case where the issue is whether to sell and sell narcotics, etc., a seller denies the receipt and delivery of narcotics, etc., and there is no objective evidence, such as financial data to support them, the statement by the purchaser of narcotics, etc., is admissible as evidence, and there is a credibility to exclude a reasonable doubt. The determination of credibility should also be based on the reasonableness, objective reasonableness, consistency before and after the statement itself, as well as the existence of interests arising from his/her human being, and the statement. In particular, in a case where there is a suspicion of a crime against him/her, and there is a possibility that the investigation is being initiated or an investigation is being conducted, even if the admissibility of the statement does not reach the extent that the evidence of the statement is denied, whether efforts to escape from the imminent place may affect the statement (see, e.g., Supreme Court Decision 2014Do1779, Apr. 10, 2014).

Examining the above circumstances admitted by the lower court and the following circumstances acknowledged by the evidence duly admitted and investigated by the lower court in light of the legal doctrine as seen earlier, it is insufficient to view that the statement of D was not reliable and the remaining evidence submitted by the prosecutor alone is insufficient to prove that the Defendant sold phiphones to D to the extent that there is no reasonable doubt. Therefore, the lower court’s judgment on this part is justifiable, and there was no error of mistake of facts alleged by the prosecutor.

(1) On May 8, 2017, at around 22:00 on the same day immediately after emergency arrest, D stated that “C” was purchased from P around July 2016 from the police station, and was concealed in the main body of the computer located in the office of Leecheon-si and did not have been seized from the police station investigators belonging to the police station during the safe period of March 2017 (28-29 pages of the document delivery record No. 2017 investigation record). After the seizure, D refused to make a statement at around 3.14 g of the cellphone, which was sealed at the end, around 21:0 (23:24) and was completely purchased from the police station around May 8, 2017 (2017 after the document delivery record No. 857 investigation record No. 857).

(2) At the time of investigation or testimony of this part of the facts charged, D stated that the Defendant was aware of about 10 days prior to the detection of a narcotic act and that it was not related to narcotics (the investigation record 96-97 pages, 109-110 pages). On the other hand, D’s statement to the Defendant that it was not necessary to purchase the phone to Q, and to sell the phone to R’s office on July 20, 2017, it was difficult for the Defendant to use the phone to sell the phone to Q, 30 days prior to the 19th day after January 15, 2017 (the 19th day after the 19th day after the 2017th day after the 3th day after the 19th day after the 2017 day after the 3th day after the 3th day after the 4th day after the 2017 day after the 3th day after the 3th day after the 4th day after the 2017th day after the 201st day after the 3th day after the 204th day.

(4) As seen earlier, D’s emergency arrest on May 8, 2017, and approximately 3.14 g of philopon kept in the bank was seized, and even if it was not disclosed, it cannot be exempt from criminal punishment.

It cannot be ruled out that the Defendant made a false statement that he purchased a phiphone from the Defendant with no defrien relationship in order to conceal the actual phiphone purchasing office. Therefore, it is difficult to view that D himself led to the confession of this part of the facts charged on the ground that he was subject to criminal punishment due to the suspicion of purchase of phiphones, and that the credibility of his statement is high.

(5) Meanwhile, on May 5, 2017, asserting that D was the date on which D received a phiphone from the Defendant, the Defendant and D sent phone four times more than once, and the address of the base station where D was sent was identified as T, which is the place of crime indicated in the facts charged, is recognized, but both the Defendant and D had a residence in the C building located in E, e.g., in e., the Defendant and D had a domicile in the C building located in E, and had a period of drinking a balon. Thus, the fact alone cannot be readily concluded that D sold a phiphone to D on May 5, 2017.

4. Judgment on the Defendant’s assertion of unreasonable sentencing

In a case where there is no change in the conditions of sentencing compared to the first instance court, and the sentencing of the first instance court does not deviate from the reasonable scope of discretion, it is reasonable to respect it, and it is desirable to refrain from imposing a sentence that does not differ from the first instance court solely on the ground that the sentence is somewhat different from the opinion of the appellate court (see Supreme Court en banc Decision 2015Do3260, Jul. 23, 2015).

The lower court determined a sentence by taking into account all the favorable and unfavorable circumstances for the Defendant, and there is no change in the sentencing conditions compared with the lower court’s failure to submit new sentencing data in the trial, and even considering the various sentencing conditions in the instant records and pleadings, it does not seem that the lower court’s sentence was too unreasonable and exceeded the scope of reasonable discretion in sentencing.

Therefore, the defendant's above assertion is without merit.

5. Conclusion

Therefore, since the judgment of the court below has a ground for ex officio reversal, the part of acquittal among the judgment below shall be reversed pursuant to Article 364 (2) of the Criminal Procedure Act, and it shall be decided again after pleadings, and since the defendant's appeal is without merit, it shall be dismissed pursuant to Article 364 (4) of the Criminal Procedure

【Grounds for another judgment】

The acquittal portion

The summary of this part of the facts charged is the same as that of Article 3-2(a), and as seen in Article 3-2(3) of the Criminal Procedure Act, it constitutes a case where there is no proof of a crime, and thus, the summary of the part of innocence is announced in accordance with Article 58(2) of the Criminal Procedure Act.

Judges Hwang Young-ju

Judges Kim Gin-ju