마약류관리에관한법률위반(향정)
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for a term of one year and two months.
10,000 won shall be additionally collected from the defendant.
1. The decision of the court below (a year and two months of imprisonment, and an additional collection) on the summary of the reasons for appeal is too unreasonable.
2. According to the evidence duly adopted and examined by the lower court, it is recognized that the Defendant was sentenced to one year of imprisonment with prison labor for a violation of the Narcotics Control Act at the Suwon Friwon on June 22, 2017, and completed the execution of the sentence on April 26, 2018.
Article 35(1) of the Criminal Act provides that “A person who was sentenced to imprisonment without prison labor or a heavier punishment and commits a crime heavier than imprisonment without prison labor within three years after the completion or exemption of the execution thereof shall be punished as a repeated offense.” Article 66(1) of the Criminal Procedure Act provides that “The calculation of the period by time shall be calculated immediately, and the first day shall not be included in calculating the period by day, month, or year.” Thus, it is reasonable to deem the starting date of the repeated offense period to be 00:00 on April 27, 2018 after the date when the defendant completed the execution of the punishment (the starting date of the repeated offense period is deemed to be the date when the execution of the previous punishment is actually completed. However, the first day of Article 66(1) proviso of the Criminal Procedure Act provides that the period of repeated offense shall be excluded from the principle of non-taxation and the period of detention; ② The period of punishment shall not fall under such case; ② the date when the term of the punishment expires after the termination of the punishment period (Article 24(1).
In light of the fact that it is difficult to view that the term of punishment is reduced accordingly, it is difficult to accept. Therefore, even though each of the instant offenses committed by the Defendant on the day on which the execution of punishment was completed cannot be deemed to constitute a repeated crime, the lower court determined the scope of the punishment by aggravated repeated crimes under Article 35 of the Criminal Act, and thus, the lower judgment became unable to be maintained any longer.
3. Conclusion.