Defendant

Prosecutor

Sub-sections

Attorney Kim Il-sung (Korean National Ship)

Seoul Northern District Court Decision 2011Mohap19, 2011Mo2 (Consolidated) Decided March 18, 2011

The part of the judgment of the court below regarding the defendant is reversed.

A defendant shall be punished by imprisonment for two years.

3 times the butane gas shall be confiscated.

The reasons for appeal by the prosecutor are that the court below's punishment (one year and six months of imprisonment) is unreasonable.

In a case where the Defendant, like the Defendant, committed again during the same repeated crime of injecting gas inhaled during the same period as the Defendant, and the Defendant is acknowledged to have the habit of the crime, the major sentencing is being investigated in the amount of one year and six months of imprisonment with prison labor as the lower court. However, when the Defendant already received six times or more of imprisonment with prison labor, two times of less than one year and six months of imprisonment with prison labor, and the instant case is concurrent crimes of intimidation other than the crime of injecting carbon gas, the lower court’s punishment is deemed unfair.

On the other hand, knife and knife which the court below sentenced confiscation are not owned by the victim (Article 48 (1) of the Criminal Act).

In conclusion, since the prosecutor's appeal disputing sentencing has reasons and reasons for reversal ex officio, among the judgment below, the part of the defendant's case is reversed and it is decided as follows.

The judgment of the court below is as follows.

1. Penalty provisions;

Article 58 subparag. 3 of the Toxic Chemicals Control Act, Article 43(1) (the points of inhaleing hallucinogenic substances, the choice of imprisonment), Article 3(1), Article 2(1)1 of the Punishment of Violences, etc. Act, Article 283(1) of the Criminal Act (the points of intimidation by carrying with a deadly weapon)

1. Aggravation for repeated crimes;

Article 35 of the Criminal Act (Limits to the proviso to Article 42 of the Criminal Act in regard to the violation of the Punishment of Violences, etc. Act (a collective, deadly Weapons, etc.)

1. Aggravation for concurrent crimes;

The former part of Article 37 of the Criminal Act, Article 38 (1) 2, and Article 50 [limited to the proviso of Article 42 of the Criminal Act concerning the punishment of violence, etc. with heavier punishment (a violation of the Punishment of Violence, etc. Act (a violation of the said Act)]

1. Confiscation;

Article 48 (1) 1 of the Criminal Act

Judges Kim Jong-chul (Presiding Judge)