Aggravated Punishment for Crimes ConcerningNarcotics

(15-2(B) KCCR 242, 2002Hun-Ba24, November 27, 2003)

Held, the provision of the Act on the Aggravated Punishment, etc.of Specified Crimes that uniformlyaggravates the crime of simple pur-

chase or possession for the purpose of sale of narcotics to be subjectto the same punishment as in the case of an offense for profit and a repeat offender is unconstitutional.

A. Background of the Case

(1) The Controlled Substance Act, which is a consolidation of the former acts, the Narcotics Act, the Psychotropic Drugs ControlAct, and the Cannabis Control Act, regulates in Article 58 the exportand import and the sale of narcotics, the manufacturing, the export and import and the sale of Psychotropic Drugs, and the export and import of cannabis, and imposes relatively lighter punishment uponsimple narcotics-related crimes as distinguished from crimes for profitor repeated offenses concerning narcotics. The Act on the AggravatedPunishment, etc. of Specified Crimes (hereinafter referred to as the'Aggravated Punishment Act'), which included an aggravated punish-

ment provision for narcotics-related crimeseven prior to the consol-

idation of relevant statutes to the Controlled Substance Act, providesfor an aggravated punishment for those who commit narcotics-relatedcrimes under Article 58 of the newly enacted Controlled SubstanceAct. In doing so, the Aggravated Punishment Act uniformly imposesfor the purchase of narcotics or the possession of narcotics for the purpose of sale, the punishment of a death sentence, life sentence,or imprisonment of ten years or longer, which is identical to the punishment for the crime for profit or repeated offenses, without questioning whether the conduct of purchase or possession is forprofit or a repeated offense.

(2)The complainant was foundguilty and sentenced to imprison-

ment for five years in both courts of first instance and second instancefor purchasing and for possessing for the purpose of sale opium, whichis a controlled narcotic. The complainant subsequently appealed tothe Supreme Court and, during the pendency of such appeal, petitionedthe Supreme Court to request a constitutional review upon the aboveprovision of the Aggravated Punishment Act on the ground that theuniform aggravation of punishment for the purchase or the possessionfor the purpose of sale of narcotics without questioning such act is a crime for profit or a repeated offense under the above provision was unconstitutional, which was, however, denied. The complainant thereupon filed a constitutional complaint in this case.

B. Summary of the Decision

The Constitutional Court, in a unanimous opinion, held that theprovision of the Aggravated Punishment Act uniformly aggravating thepunishment for narcotics-related crimes (hereinafter referred to asthe "provision at issue in this case") is unconstitutional. The groundtherefor is stated in the following paragraphs.

(1)In determining the scope of the statutory sentence for crimes,the demand of Article 10 of the Constitution that human dignity and value must be respected andprotected against the threats of punish-

ment should be met, and the principle of individualized punishmentshould apply pursuant to the spirit of the prohibition against excessivelegislation under Article 37(2) of the Constitution. There should be an appropriate balance so that the punishment imposed corresponds to the quality of the crime and the actor's responsibility.

(2)The conduct of purchasing narcotics for profit connotes furtherunlawfulness and deserves furtherblame compared with a simple pur-

chase of narcotics not intended for profit or other crimes for profit, in that such conduct of purchasing narcotics for profit contributes tolarge-scale dissemination of narcotics by generating new narcoticssuppliers, enlarging those preexisting manufacturing and sales orga-

nizations, and stimulating dissemination of narcotics, and that such conduct pursues profit by devastating others' spirit and body. On the contrary, a simple purchase of narcotics without intention for profit is distinguishable from a purchase thereof for profit in termsof the criminal quality including such aspects as the degree of con-

tribution to the dissemination of narcotics, the structure of the conduct, the degree of danger involved, and the blameworthiness, as a simple not-for-profit purchase of narcotics basically falls on the demand-side and is at the final stage in the narcotics circulation and distribution structure.

Considering such differences in criminal quality, the Controlled

Substance Act provides that simple narcotics-related crimes are pun-

ishable by a life sentence or imprisonment of five years or longer,whereas crimes for profit and repeated offenses are punishable by sucha grave statutory sentence as capital punishment, a life sentence, orimprisonment of ten years or longer. As such, the distinction betweensimple narcotics-related crimes and narcotics crimes for profit is bothgreatly meaningful and necessary. The provision at issue in this case, however, uniformly aggravates the punishment for the above two types of conduct with the identical statutory sentence ignoringthe different degrees of unlawfulness, the difference in criminal quality, and the difference in quality in terms of the blameworthiness forthe respective conduct. Therefore, the provision at issue in this casefailsto satisfy the proportionate relationship between the actor's respon-

sibility and the ensuing punishment,deviating from the scope of leg-

islative formation concerning the determination of statutory sentences.

(3) The crime of possessing narcotics with the intent to sell is to independently and separately punish such conduct inchoate to the actual sale of narcotics. The essential nature of the conduct of saleof narcotics is generally pursuit of profits. In light of this, probabilityof actual sale and contribution to the dissemination of narcotics con-

cerning simple not-for-profit possession with the intent to sell is extremely marginal. Theabove provision of the Aggravated Punish-

ment Act nonetheless aggravates the punishment uniformly for suchconduct without distinguishing such conduct from narcotics crimes for profit. This is an excessive abuse of the state authority tocriminally punish.

(4)The above provision of the Aggravated Punishment Act providesthat even simple purchase of narcotics or simple possession with the intent to sell shall be punished by capital punishment, life sentence,or imprisonment of ten years or longer. As such, the above provisionof the Aggravated Punishment Act is highly inappropriate and unjustas it extremely restricts the right and authority of a judge in deter-

mining sentences for it leaves no possibility of probation but for additional legal sentence-mitigating factors even for, for example,purchase or possession of narcotics in an extremely small amount, even with mitigating factors applicable in practice, and, also, as it limits the right of a judge to determine the sentence at its sourceby disallowing the judge to sentence corresponding to the actor'sresponsibility.

(5) In light of the danger of narcotics or the weight narcotics occupies in our society, narcotics do not pose more of a danger thanPsychotropic Drugs to the extent that narcotics-related crimes shouldspecifically be punished to an aggravated degree as opposed to thosecrimes involving Psychotropic Drugs such as methamphetamine. Therecan be found no reasonable ground to aggravate punishment specificallyfor

narcotics-related crimes considering the reality concerning variouscrimes, the rate of prosecution, the result of criminal proceedings, andthe legislative history of the statutes regulating controlled substances. The above provision of the Aggravated Punishment Act singles out and aggravates punishment for such narcotics-related crimes as the purchase and the possession with the intent to sell of narcotics with no reasonable ground therefor, and thus, it violates the principle ofequality as it conspicuously lacksthe requisite balance in the punish-

ment and sentencing structure.

(6) To conclude, the provision at issue in this case sets forth excessively grave criminalpunishment for the conduct at issue com-

pared with the unlawfulness of such conduct. Thus, the provision at issue in this case is against the idea of the state substantively ruled by law devoted to protect human dignity and value as it fails to satisfy the proportionate relationship between the responsibility and the criminal punishment, violates the principle of prohibition against excessive legislation as it conspicuously deviates from the degree necessary for achieving original function and purpose of the criminal punishment, and violates the principle of equality in relation with other crimes as it lacks the requisite balance in the criminal punishment and sentencing structure.