2020Do398 Violation of the Act on the Control of Narcotics, etc. (franking)

Defendant

Prosecutor

Suwon District Court Decision 2019Do453,2054 (Consolidated) Decided December 12, 2019

May 14, 2020

The appeal shall be dismissed.

The grounds for appeal are determined.

1. A point of violation of the Act on the Control of Narcotics, etc. Due to medication;

A. The lower court determined that the Defendant’s voluntary behavior against the Defendant was based on Article 3(2) of the Act on the Performance of Duties by Police Officers, and that the Defendant’s defense and hair submitted under illegal confinement in violation of Article 3(6) of the same Act was illegally collected.

However, in addition to the voluntary accompanying of a suspect is carried out as a police activity for the purpose of administrative police under Article 3(2) of the Act on the Performance of Duties by Police Officers, it is possible to cases where the voluntary accompanying is carried out solely by the suspect's own will, such as where it is acknowledged that, at any time, the suspect who was informed that he/she could refuse to accompany the suspect before the accompanying of the investigative officer for criminal investigation pursuant to Article 199(1) of the Criminal Procedure Act, or that the suspect who was accompanied could freely leave or leave from the accompanying place (see Supreme Court Decision 2005Do6810, Jul. 6, 2006).

According to the record, at the time of the police officer’s voluntary accompanying to a police station, based on the Defendant’s mental condition, his body, species of alcohol, previous convictions, etc., and the Defendant’s voluntary accompanying to a police station was deemed reasonable and demanded by the police station, and at the police station located in the accompanying place, the Defendant requested the Defendant to voluntarily submit a urine or hair that may reveal the suspicion of medication of narcotics. Thus, the voluntary accompanying of this case constitutes voluntary accompanying pursuant to Article 199(1) of the Criminal Procedure Act, as it is for investigating the suspected crime of medication of narcotics. Nevertheless, the lower court erred by misapprehending the legal doctrine on voluntary accompanying, as seen above, in determining the voluntary accompanying of this case pursuant to Article 3(2) of the Act on the Performance of Police Officers’ Duties.

B. However, according to the relevant legal principles and records, the judgment of the court below denied the admissibility of submission when the investigative agency seizes the above defense and hair as voluntarily produced articles pursuant to Article 218 of the Criminal Procedure Act. In light of the relevant legal principles and records, the judgment of the court below did not err in the misapprehension of the legal principles as to the illegality of discretion, contrary to what is alleged in the grounds of appeal, by exceeding the bounds of the principle of free evaluation of evidence by violating the logical and empirical rules, and thereby exceeding the bounds of the principle of free evaluation of evidence by exceeding the bounds of the principle of free evaluation of evidence, or by misapprehending the legal principles as to the exclusion of seizure of voluntarily produced articles, the exclusion of illegally collected evidence, and the admissibility of evidence. Ultimately, the defendant's defense and hair cannot be admitted as admissibility. Thus, the judgment of the court below erred by misapprehending the legal principles as

2. Points in violation of the Act on the Control of Narcotics, etc. Caused by Possession;

A. The lower court acquitted the Defendant of this part of the facts charged on the ground that it is probable that the Defendant had been under custody of some drugs, and that the possibility of having been prescribed for medical treatment, such as the Defendant’s infertility, cannot be ruled out.

B. Examining the relevant legal principles and records, the lower court did not err in its judgment by violating the logical and empirical rules, contrary to what is alleged in the grounds of appeal, thereby exceeding the bounds of the principle of free evaluation of evidence.

3. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Noh Tae-tae

Justices Kim Jae-hyung

Justices Min You-sook of the District Court

Justices Lee Dong-won