마약류관리에관한법률위반(향정)
The judgment below
The penalty collection portion shall be reversed.
The remaining appeal by the defendant is dismissed.
1. Summary of grounds for appeal;
A. The Defendant, by mistake of fact, did not provide F with a philophone (the crime No. 1 of the judgment below), and there was no fact that he administered a philophone (the crime No. 2 of the judgment below). Nevertheless, the judgment of the court below which found the Defendant guilty of the facts charged in this case is erroneous in the
B. The punishment of the lower judgment that was unfair in sentencing (an additional collection of 200,000 won) is too unreasonable.
2. The court below held ex officio that the defendant was aware of the fact of the crime that "the defendant was aware of the fact that he was dissiponed."
F Recognizing the fact that the F provided a philophone by drinking it (the crime No. 1 of the holding) and “the fact that the philophone was administered by drinking or injection, etc.” (the crime No. 2 of the holding), and additionally collecting KRW 200,000,000,000, which is equivalent to the market price of the philophone two times.
However, insofar as the Defendant determined that the volume of philophones administered by him cannot be specified by F or the amount of philophones administered by him, it cannot be collected from the Defendant. Therefore, the part of the lower judgment on additional collection cannot be maintained any longer by unlawful means (see Supreme Court Decision 2016Do16170, Dec. 15, 2016). 3.
A. The Defendant also argued to the same effect in the lower court in determining whether to provide philophones to F. In full view of the following circumstances: (a) the process of the instant case and the details of the report; (b) whether F’s statement meets the objective rationality and consistency of the relevant persons; and (c) whether F has any reason or motive to gather the Defendant, the lower court recognized that F provided philophones to F by means of driving philophones on the beer in which F was drinking before the Defendant had sexual intercourse; and (d) contrary to the Defendant’s assertion, it is difficult to see that the possibility that F administered philophones by a person regardless of the Defendant or by another person even if the Defendant was administered philophones by a person, as alleged by the Defendant, cannot be presented.
judgment of the defendant, the defendant.