[마약법위반피고사건][고집1973형,303]
Whether a person other than the offender may confiscate the goods that he has acquired with knowledge of the fact
Even an article which has been provided or has been provided for a crime, if it is not acquired by a person other than the offender with the knowledge of the fact after the crime, it shall not be confiscated.
Article 48 of the Criminal Act
65o4 delivered on January 31, 1966 (Supreme Court Decision 3785Da1254 delivered on January 31, 196)
Defendant 1 and one other
Prosecutor
Suwon Branch Court of Chuncheon District Court of the first instance (73 Gohap68, Counsel for the defendant-appellant)
The judgment of the court below is reversed.
Defendant 1 shall be punished by imprisonment with prison labor for one year and by imprisonment with prison labor for ten months.
The seventy-five days of detention days prior to the declaration of the original judgment shall be included in each original sentence.
Seized 57 girs, etc. (No. 1.2.7.8) of the baby seized shall be confiscated from Defendant 1; and 12.5 girs, etc. (No. 3 through 6) of the baby shall be confiscated from Defendant 2.
The gist of the reasons for appeal by the prosecutor is that the judgment of the court below against the defendants is unreasonable because the amount of the punishment imposed by the court below is too uneasible.
In light of the above reasons for appeal, even if the articles were to be provided or provided for the crime under Article 48 (1) of the Criminal Act, if a person other than the criminal knowingly acquired it after the crime was committed, it cannot be confiscated. The court below erred by misapprehending the legal principles of Article 48 (1) of the above Criminal Act, and by misapprehending the legal principles of Article 6 (3) and Article 61 (1) 2 of the Narcotics Act (Act No. 2612), the statutory punishment for the crime of extraction of drug ingredients is limited to a limited term of one year or more, and without harming any mitigation by the court below, Defendant 2 was sentenced to imprisonment with prison labor for 10 months. Since the court below erred by misapprehending the legal principles of the above Article 2 of the Narcotics Act and all these grounds are affected by the judgment below, it cannot be reversed.
Therefore, the judgment of the court below shall be reversed in accordance with Article 364 (2) of the Criminal Procedure Act, and the members thereof shall be decided again.
(Criminal Facts and Summary of Evidence)
The summary of the evidence of the defendant's criminal facts and the summary of the evidence admitted by a member of the party is as shown in each corresponding column of the judgment below, and all of them are cited in accordance with Article 369 of the Criminal Procedure Act, since it is shown in each corresponding column of the judgment below.
(Application of Acts and subordinate statutes)
In the judgment below, the defendants' each cultivation of narcotics constitutes a case where there is a change in the law after the crime. Article 6 subparagraph 3 of the former Narcotics Act (Act No. 2954), Article 60-2 of the former Act at the time of the act. According to Article 6 subparagraph 3 and Article 61 (1) 2 of the Narcotics Act (Act No. 2612), since the seriousness of punishment is compared in accordance with Article 50 of the Criminal Act, the punishment of the former Act shall be imposed in accordance with the law at the time of the act pursuant to Article 1 (1) of the Criminal Act. Article 6 subparagraph 3 and Article 61 (1) 2 of the same Act shall be included in the punishment of the defendants, and Article 6 (1) 7 of the same Act shall be included in the punishment of each of the above defendants, and Article 6 (1) 5 of the same Act shall be included in the punishment of each of the above defendants, and Article 7 of the same Act shall be included in the punishment of the above 5th sentence.
Judges Park Jong-dae (Presiding Judge) Promotion