마약류관리에관한법률위반(향정)
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for not less than two years and six months.
1. Summary of grounds for appeal;
A. The court below erred by misapprehending the legal principles as to additional collection of KRW 2,062,50,00, which was collected from the defendant and D from approximately 2.75 g of the penphone imported by the defendant and D, and KRW 2.75 g of the above penphone imported by D, and arrested the investigation agency, and thus, the above penphone was confiscated by the court and the defendant was actually confiscated. However, the court below erred by misapprehending the legal principles as to additional collection, which affected the conclusion of the judgment.
B. The sentence imposed by the court below on the defendant (two years and six months of imprisonment) is too unreasonable.
2. As to the Defendant’s assertion of misapprehension of the legal doctrine, the additional collection of narcotics under the Act on the Control of Narcotics, etc. is a disposition with punitive nature, and thus, not only the owner or the final holder of the same narcotics, but also the person who handles the same narcotics, etc., shall be ordered to collect the total value of the narcotics within the scope of the handling. However, if the whole or part of the narcotics, etc. were confiscated from the owner or the final holder, the same applies to the confiscation of the narcotics, etc.
(See Supreme Court Decision 2009Do2819 Decided June 11, 2009). According to the evidence duly adopted and examined by the court below, D, in collusion with the defendant, imported approximately 2.75g of Handphones from China around June 23, 2008 to the Republic of Korea, was sentenced to confiscation of approximately 2.75g of Handphones imported in June 15, 2008 at the Gwangju District Court on October 15, 2008. It can be recognized that the above judgment became final and conclusive on December 13, 2008. Thus, as long as approximately 2.75g of Handphones imported by D through the above final and conclusive judgment on D were confiscated, it also applies to the defendant who confiscated the above phiphones.