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(영문) 서울고등법원 (춘천) 2020.04.01 2019노224

마약류관리에관한법률위반(향정)

Text

The defendant's appeal is dismissed.

Reasons

1. Summary of grounds for appeal;

A. misunderstanding of facts and misunderstanding of legal principles 1) The crime of importing phiphones by the defendant of the ship investigation by the violation of the Act on the Control of Narcotics, etc. (a) the import of phiphones by the investigation agency is due to the ship investigation that caused the criminal intent of the defendant.

Since such a naval investigation is illegal and thus it is not permitted, this part of the indictment should be dismissed because the prosecution procedure is invalid in violation of the provisions of law.

Nevertheless, the court below erred by misapprehending the legal principles on the investigation procedure and by misapprehending the legal principles on illegal naval investigation, which affected the conclusion of the judgment, since the court below neglected this and found the Defendant guilty.

B) The Defendant, who has no intention of co-processing with B, merely imported phiphones by intimidation from B, and did not intend to co-processing with B. Nevertheless, the lower court recognized that the Defendant conspireded with B to import phiphones, erred by misapprehending the legal doctrine on co-principal, thereby adversely affecting the conclusion of the judgment. 2) The Defendant’s possession of phiphones by holding phiphones is an inevitable result accompanied by the act of importing phiphones, and it does not constitute a violation of the Act on the Control of Narcotics, etc. (flaps) by holding phiphones, other than the crime of violating the Act on the Control of Narcotics, etc. (flaps) due to the import of phiphones.

Nevertheless, the lower court erred by misapprehending the legal doctrine regarding the number of crimes, thereby adversely affecting the conclusion of the judgment.

B. The lower court’s sentence of unreasonable sentencing (two years and six months of imprisonment) is too unreasonable.

2. Determination

A. Determination on the assertion of mistake of facts and misapprehension of legal principles 1) Determination on the assertion of naval investigation should be made by an investigative agency against a person who does not have the original criminal intent in the relevant legal principles.