However, the execution of the above punishment shall be suspended for three years from the date this judgment became final and conclusive.

To order the defendant to be put on probation for two years and to take a course of pharmacologic treatment for 40 hours.

Seized evidence as referred to in subparagraphs 1 through 4 (excluding the amount consumed for each appraisal) shall be confiscated.

767,500 won shall be additionally collected from the defendant.

The amount equivalent to the above additional collection charge shall be ordered to be paid provisionally.

【Criminal Power】

On October 13, 2016, the Defendant was sentenced to a suspended sentence of two years on October 21, 2016 by imprisonment with prison labor for a violation of the Act on the Control of Narcotics, Etc. (fence) at the Seoul Central District Court, which became final and conclusive on October 21, 2016.

【Criminal Facts】

Around October 2015, the Defendant, who is not a person handling narcotics, conspired to import psychotropic drugs from 'D', which is a single name residing in C and the United States, to import psychotropic drugs, 'JH-18 and its similar chain MDBIN'-Bz-F (hereinafter referred to as 's synthetic marijuana'; hereinafter referred to as 's synthetic marijuana').

1. Revenues from 10,30.10

On October 2015, the Defendant received text messages to trade USD 2,16.5 g of synthetic marijuana with his/her cell phone around October 2015, and C transferred USD 2,000 to the account designated by D, with its synthetic marijuana purchase price around October 2015.

D At around 11:13 on October 29, 2015, while concealing synthetic marijuana 216.5g in air mail, it delivered it to the United States sandfranc Airport (UA) E, and the above synthetic marijuana arrived at the Incheon Airport (No. 16:351 on October 30, 2015).

2. Revenues from December 14, 2015

On November 2015, the Defendant sent text messages to trade D and US$ 700 to his mobile phone, and C transferred USD 700 to the account designated by D, around December 7, 2015, the amount of USD 700 to the purchase price for synthetic marijuana.

D The Defendant, around December 14, 2015, concealed and delivered synthetic marijuana 64g to the U.S. Air Post, received the above synthetic marijuana from Gangnam-gu Seoul F and 304.

Accordingly, the Defendant, in collusion with C, imported a total of 280.5g synthetic marijuana over two occasions in the United States.

Summary of Evidence

1. Partial statement of the defendant;

1. C Statement of the suspected suspect at each prosecutor's office;

1. Each investigation report (specific persons suspected of being suspected of the second half after the control delivery, appending data related to MFB, reporting on the details of the report on detection, and reporting on the fact of re-receiving of the report on detection);

1. Records of seizure and the list of seizure;

1. The detection report of the Incheon Customs Office, reports on the results of analysis, replies to request for analysis, copies of lease contract, copies of G text messages exchanged between A and C, and D (section 6, copies), Handphonephones, H and G text messages creation pictures of C;

1. A report on investigation (calculated additional charges);

1. Previous records of judgment: Criminal records and investigation reports (report on binding of judgment, etc. of A);

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 58(1)3, 3 subparag. 5, and 2 subparag. 3(a) of the Act on the Control of Narcotics, Etc., and Article 30 of the Criminal Act

1. Handling concurrent crimes;

The latter part of Article 37 and Article 39(1) of the Criminal Act

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act is heavier than that of Article 38 (1) 2, and Article 50 of the Criminal Act; and

1. The latter part of Article 39 (1) and Article 55 (1) 3 of the mitigated Criminal Act following the treatment of concurrent crimes;

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following consideration for the reasons for sentencing):

1. Suspension of execution;

Article 62(1) of the Criminal Act (The following grounds for sentencing has been repeatedly taken into consideration for favorable circumstances)

1. Orders for probation and education;

Article 62-2 (1) and the proviso to Article 62 (2) of the Criminal Act, Article 59 of the Act on Probation, etc.

1. Confiscation;

The main sentence of Article 67 of the Narcotics Control Act

1. Additional collection:

The proviso to Article 67 of the Narcotics Control Act (the grounds for calculating the amount of additional collection shall be the same as the attached Form)

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Grounds for conviction

1. Summary of the defendant's assertion

A. In the course of the investigation of accomplice C, even though the prosecutor recognizes the fact that the Defendant was involved in the instant crime, he voluntarily indicted the Defendant for committing a crime violating the Act on the Control of Narcotics, etc., and the judgment became final and conclusive, and abused the right to institute a public prosecution by instituting the instant public prosecution after the occurrence of the judgment

B. The Defendant, as indicated in its reasoning, did not conspired with C to commit a crime of importing synthetic marijuana, and merely attempted to commit a crime of importing synthetic marijuana to mobile phones upon C’s request. The type, quantity, and price of synthetic marijuana imported according to C’s intent was determined, and the Defendant received international items sent by D on behalf of C.

2. Determination

A. Determination as to the assertion of abuse of power to prosecute

1) Under Articles 246 and 247 of the Criminal Procedure Act, a prosecutor may institute a public prosecution in cases where it is deemed reasonable to impose criminal sanctions on the grounds that the elements of a crime are satisfied, and the discretion to decide not to institute a public prosecution is granted, taking into account the matters under Article 51 of the Criminal Act. However, in cases where the prosecutor appears to have remarkably deviates from the prosecution discretion by exercising his/her right to institute a public prosecution and giving substantial disadvantages to the defendant, it may be denied the validity of a public prosecution by regarding the abuse of his/her right to institute a public prosecution. Here, the exercise of his/her right to institute a public prosecution is not sufficient merely by negligence in the course of performing his/her duties, and at least by negligence or at least with any intention (see, e.g., Supreme Court Decision

2) Comprehensively taking account of various evidence duly adopted and examined by the court of this case, C, who is an accomplice in the facts charged of this case, was indicted for the facts charged of this case and was sentenced to imprisonment for two years and six months at the first instance court on April 21, 2016 [Seoul Central District Court Decision 2016Gohap74, 2016Gohap203 (Merger)]. On August 19, 2016, the appeal was dismissed (Seoul High Court 2016Do1150). According to the above first instance court judgment, each investigation report (the confirmation and attachment of cell phone contents used by the suspect C, the addition of the "G" conversation between the suspect C and the non-party, the contents of conversation between the suspect C and the non-party, and the prosecutor, without including the import crime of this case, shall be admitted to have been prosecuted on August 31, 2016 (the first case and the first case after the judgment) of the Act on the Control of Narcotics, Etc. (hereinafter referred to as the judgment of this case).

3) However, the following circumstances revealed in the records and arguments of the instant case, namely, (i) the Incheon District Prosecutors’ Office reversed the statement to the effect that the Defendant imported synthetic marijuana in collusion with the Defendant at the prosecutor’s office on March 15, 2016; (ii) the prosecutor first investigated the Defendant on September 30, 2016 in the latter case; (iii) the Defendant denied the recruitment; and (iv) the Defendant stated to the effect that it corresponds to the Defendant’s assertion in the comparison with the Defendant on October 4, 2016; (iv) subsequent to the prosecution, C reversed the prosecutor’s statement to the effect that it imported synthetic marijuana in collusion with the Defendant without any contact with the Defendant; (v) the prosecutor delayed the location of the Defendant’s prior domicile at that time; and (v) the prosecutor’s allegation that there was no prosecution for the instant case after arresting the Defendant on March 23, 2017, and thus, it is difficult to view that there was no prosecution for another part of the instant case.

B. Determination as to whether there is a public offering

1) In full view of the various evidence duly admitted and examined by this Court, the following facts and circumstances are revealed.

A) At the prosecutor’s office, C imported synthetic marijuana intending to take part in the part of the Defendant, and made a statement to the effect that the Defendant would have offered synthetic marijuana free of charge if the Defendant wants to smoke (No. 188, 195 pages). The Defendant used synthetic marijuana 1g in Gangnam-gu Seoul F and 304, a residence of C, as a means to inhale smoke by attaching a fire to approximately 1g of synthetic marijuana, and used it in the same residence from December 2, 2015 to January 2016, and the synthetic marijuana received as set forth in paragraph (2) of the same Article was divided into C.

B) On October 13, 2015, the Defendant leased the residence of the above C from October 15, 2015 to January 14, 2016, with the lease term of KRW 280,000,000 per month. From around that time, the Defendant paid part of the rent to C along with C.C. In the process of purchasing synthetic marijuana from D, the Defendant was sent with D and received text messages, and the Defendant was sent with D and sent text messages on behalf of synthetic marijuana. The Defendant also asked the Prosecutor to import synthetic marijuana from D on September 13, 2015, the Defendant continued to trade with D, and it was delayed, and D had contact D with the Defendant for the reduction of its price by contact with D, and the Defendant did not want to sell synthetic marijuana more than 18,5,000, and the Defendant made a statement to the effect that it was no more than 16,000,000).

C) In contact with D, the Defendant interested in the type, quantity, and price of narcotics imported, and notified C of the transaction situation by transmitting text messages sent to C with D as above, and C heard the situation from the Defendant, and discussed the Defendant on the synthetic marijuana import together with the Defendant, and then remitted the amount to D.

2) In light of the various circumstances indicated in the aforementioned facts, particularly in light of the fact that C provided purchase fund and the Defendant directly interested with D and imported synthetic marijuana twice as indicated in its reasoning, and that the Defendant used the synthetic marijuana imported in division with C, it is reasonable to deem that the Defendant was involved in the instant crime with the intent of joint processing.

Sentencing 2)

1. Scope of applicable sentences under Acts: Imprisonment with prison labor for a period of one year and three months from March to 11 months;

2. Determination of sentence;

The crime of this case was committed in two times by international mail in the U.S., and the crime of this case was committed in light of the method of the crime, the size of the synthetic marijuana imported, etc.

However, there are favorable circumstances such as the fact that part of imported synthetic marijuana was not distributed in the city, such as the detection at the airport, the equity between the first head judgment in the judgment, and the fact that there is no other criminal power in addition to the suspension of indictment once, and the fact that there is no other criminal power, the mistake is divided, and the recidivism is not committed.

In addition, considering the age, character, conduct and environment of the defendant, motive and consequence of the crime, circumstances after the crime, etc. and various circumstances shown in the arguments, the sentence is determined as ordered and the execution of the sentence is suspended, but special matters to prevent recidivism are imposed (the probation officer's instructions concerning medication of narcotics, smoking, taking in, etc., and the probation officer's instructions concerning treatment and treatment programs are followed).

Judges Sung Jae-in

Judges' Index

2) The sentencing guidelines do not apply to each offense against the Defendant in relation to the concurrent offense under the latter part of Article 37 of the Criminal Act.