1. As to the ground of appeal on the charge No. 1

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the first instance court, the lower court’s determination that the act of trading philophones on January 24, 201 among the facts charged in the instant case was found guilty on the grounds indicated in its reasoning is justifiable. In so determining, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by exceeding the bounds of the law and application of statutes, contrary

2. As to the ground of appeal on Article 2 of the facts charged

A. The summary of this part of the facts charged is that the Defendant received KRW 2 million from the Nonindicted Party in Busan and Gyeongnamwon in response to the request from the Nonindicted Party for additional trading of phiphones from the Nonindicted Party on February 201, 201, but did not seek philophones, and did not provide philophones. The lower court found the Defendant to have committed an act as stated in the facts charged and found the Defendant guilty of this part of the facts charged, on the ground that such an act constituted an attempted transaction of philophones.

B. Even if the Defendant received money from the person who intends to purchase the philophones upon the request to request to buy the philophones, if the Defendant was not paid the money by the request to buy the philophones, but by simply receiving the money under the pretext of the price with the request to request to buy the philophones, such as having possessed or obtained the philophones, or having possible it, it cannot be deemed that the commencement of the execution of the philophones trading is the case (see Supreme Court Decision 2008Do2392, May 29, 2008, etc.).

According to the reasoning of the lower judgment and the record, the Defendant was aware of the fact that he received KRW 2 million from the Nonindicted Party on February 2, 201 upon receipt of a request from the Nonindicted Party to seek Handphones. However, there is no evidence to deem that the Defendant possessed or obtained Handphones at that time, or immediately acquired it, and there is no evidence to deem that the Defendant was in a situation that he was immediately available. However, even if considering that the Defendant had previously sold Handphones, it is difficult to deem that the Defendant was paid money upon the request by the Nonindicted Party to request the purchase and purchase of Handphones.

C. Nevertheless, the lower court found the Defendant’s act to constitute an attempted transaction of phiphones and found the Defendant guilty of this part of the facts charged. In so doing, the lower court erred by misapprehending the legal doctrine on the commencement of enforcement in phiphones, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal

3. Conclusion

Therefore, the part of the judgment of the court below regarding the violation of the Act on the Control of Narcotics, etc. (fluence) due to the attempted sale of phiphones should be reversed. Since the remaining part of the court below found guilty is a concurrent crime under the former part of Article 37 of the Criminal Act, the judgment below is reversed without examining the remaining grounds of appeal, and the case is remanded to the court below for a new trial and determination. It is so decided as per

Justices Ko Young-han (Presiding Justice)