2015Do16105 Violation of the Act on the Control of Narcotics, etc. (franking)

A

Defendant and Prosecutor

Law Firm B

Attorney N, C, andO

Busan District Court Decision 2015No1784 Decided September 24, 2015

December 10, 2015

The conviction part of the judgment below is reversed, and that part of the case is remanded to Busan District Court Panel Division.

The prosecutor's appeal is dismissed.

The grounds of appeal are examined.

1. As to the Prosecutor’s Grounds of Appeal

For reasons indicated in its reasoning, the lower court upheld the first instance judgment that acquitted the Defendant on the charge of this part of the charges, deeming that there was no proof of the crime, on the grounds that the Defendant had administered a phiphone between June 8, 201 and June 29, 2011.

Examining the reasoning of the judgment below in light of the records, the judgment below is just, and contrary to the allegations in the grounds of appeal, there is no violation of the principle of free evaluation of evidence against logical and light power.

2. As to the Defendant’s ground of appeal

A. Whether the facts charged are specified

Article 254(4) of the Criminal Procedure Act provides that the date, time, place, and method of a crime shall be specified in the facts charged for the purpose of specifying the facts charged. The purpose of the provision is to determine whether double prosecution or prescription is to facilitate the exercise of the right of defense by limiting the scope of defense of the accused. As such, the facts charged should be deemed to be sufficient to distinguish specific facts that meet the requirements for organizing the crime from other facts by comprehensively taking into account the three specific elements. Even if the date, time, place, method, etc. of the crime are not specified in the indictment, if the indictment does not go against the above degree, and if it is inevitable to indicate general facts in light of the nature of the crime charged, and it is deemed that the exercise of the right of defense of the accused is not interfered with, the indictment cannot be deemed unlawful because the contents of the indictment are not specified (see, e.g., Supreme Court Decisions 2007Do11000, Mar. 27, 2008; 2008Do68, Feb. 12

The lower court determined that, to the extent that the Defendant did not infringe the Defendant’s right to defense against this part of the facts charged, the Defendant was identified to the reasonable extent in light of the characteristics of the crime, to the extent that the Defendant, from May 11, 2014 to May 15, 2014, administered phiphones with the volume of phiphones in an insular area (hereinafter referred to as the “unsularphones”) to the extent that he/she did not infringe the Defendant’s right to defense.

In light of the above legal principles and records, it is just to determine that this part of the facts charged was specified, and there is no error of misapprehending the legal principles as to the specification of facts charged.

B. Whether the facts charged are proven

The conviction in a criminal trial ought to be based on evidence with probative value, which leads a judge to have a conviction that the facts charged are true beyond a reasonable doubt. Thus, if there is no such evidence, even if there is doubt as to the defendant's guilt, it shall be determined with the benefit of the defendant (see, e.g., Supreme Court Decisions 2002Do6110, Feb. 11, 2003; 2005Do8675, Mar. 9, 2006).

The lower court upheld the first instance judgment convicting the Defendant of this part of the facts charged on the part of the facts charged on the phiphone medication between May 11, 2014 and May 15, 2014, on the ground that according to the evidence duly admitted and investigated by the first instance court, the Defendant could sufficiently recognize that the phiphone medication was administered as shown in this part of the facts charged.

However, such determination by the lower court is not acceptable for the following reasons. The summary of the evidence of the first instance judgment cited by the lower court is written only in the records of seizure, list of seizure, and list of requests for appraisal except for the evidence related to the previous conviction in its judgment. Each of the above evidence is that the defendant’s hair 60 meters long from May 28, 2014 was detected as a result of seizure and appraisal. According to the above appraisal result, it is presumed that the defendant administered a camphone between the police officer from April 1, 2014 to May 24, 2014, and it is difficult to view that there is no other evidence to prove that there is no reasonable doubt that the defendant administered a camphone from May 111, 2014 to May 15, 2014, and there is no other evidence to prove otherwise.

Meanwhile, as above, if the investigative agency specifying the time of medication as five days and the defendant stated "I am am am am am am am am on the side" at the time of the damscamscamscamscamscamscamscamscamscamscamscamscamscamscamscamscamscamscamscamscamscamscams amscamscamscamscamscamscamscamscamscamscamscamscams amscamscamscamscamscamscamscamscamscams amscamscamscamscamscamscamscamscamscamscamscamscamscamscamscamscam amscamscamscamscam.

Nevertheless, the court below found that this part of the facts charged was guilty solely on the evidence such as the above request for appraisal, etc. In so doing, the court below erred by misapprehending the legal principles on the admissibility and probative value of evidence, or by failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The ground of appeal

3. Conclusion

The conviction part of the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination, and the prosecutor's appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-soo

Justices Go Young-young

Justices Kim In-young

Justices Lee Dong-won