마약류관리에관한법률위반(향정)
The judgment below
The part of the forfeiture shall be reversed.
Nos. 1, 3, 5, 6, 7, 11, 12, and 14 of the seized evidence.
1. The decision of the court below on the summary of the grounds for appeal (a prison term of one year and three months, confiscation and collection) is too unreasonable.
2. Although there are circumstances that may be considered such as the Defendant’s reflection of the judgment on the grounds for appeal, cooperation with the investigation of other narcotics-related criminal, and the fact that there is a pro rata will, the lower court has already determined a punishment by taking into account the circumstances favorable to the Defendant; there is no change in special circumstances or circumstances that may be newly considered in sentencing after the sentence of the lower judgment; the Defendant has been punished several times after the sentence of the lower judgment; each of the instant offenses committed also by the Defendant; the Defendant committed a repeated crime due to the same kind of crime; the amount of phiphonephonephonephones given and received from D reaches 18.95g; and other circumstances that form the conditions for sentencing and sentencing as shown in the argument and records of the instant case, including the Defendant’s age, character and behavior, environment, motive and background of the crime, means and method of the crime; and the following circumstances, it is not recognized that the sentence
Therefore, the defendant's assertion is not accepted.
3. We examine ex officio determination on the part of confiscation.
If any seized article remains at the time a judgment is pronounced, the court may not pronounce the confiscation of such article.
(see, e.g., Supreme Court Decisions 2009Do6982, Jan. 28, 2010; 2010Do3420, Jul. 15, 2010). The lower court confiscated No. 2 (Handphone 0.1g), No. 4 (Handphone 3.6g), No. 8, 9, and 10 (each penphone 4.9g), which was consumed for the scientific investigation by the Supreme Prosecutors’ Office of Education and the legal and chemical appraisal (i.e., page 137). However, the lower court confiscated this part, although it was not possible to confiscate.
In this respect, the part of the judgment of the court below can not be maintained.
4. The part of the judgment below regarding confiscation is reversed and seized in accordance with Article 364(2) of the Criminal Procedure Act, since there are grounds for reversal as seen above in the above part of the judgment below.