Defendant

Defendant

Choscopic (prosecutions) and gamblings (public trials)

Attorney Park Young-young (National Assembly)

Busan District Court Decision 2017 Height4484 Decided November 24, 2017

The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. Legal principles

The execution of a warrant of search, seizure, and verification of the defendant's defense is illegal. Therefore, the defendant's defense and the evidence collected based on it cannot be used as evidence of conviction as secondary evidence of illegally collected evidence or illegally collected evidence.

B. Unreasonable sentencing

The punishment of the court below (one year of imprisonment and additional collection) is too heavy.

2. Determination

A. As to the assertion of misapprehension of legal principle

1) Article 120(1) of the Criminal Procedure Act which applies mutatis mutandis to the search, seizure, and inspection by an investigative agency pursuant to Article 219 of the same Act provides that "it may be listed or opened for the execution of a warrant of search and seizure, or take other necessary measures." Article 140 of the same Act provides that "the inspection of evidence may be conducted, such as physical examination, autopsy, grave excavation, destruction of things, and other necessary dispositions." Thus, it is reasonable to interpret "necessary disposition" as a disposition necessary to facilitate seizure, search, inspection in advance or in the course of execution and secure its execution. Whether it is necessary disposition should be determined by comprehensively taking into account all the circumstances such as reasons for the search and seizure inspection, relevance with the search and seizure inspection, and urgency.

2) In light of the following facts acknowledged by the evidence duly adopted and investigated by the court below, the execution of a warrant of search, seizure and verification against the defendant was lawful since it was a necessary disposition for the execution of the warrant, which was conducted within the scope for the execution of the warrant, in full view of all circumstances such as the reason for search, seizure and verification, relevance to search, seizure and verification, and urgency

(1) On August 10, 2017, an investigative agency issued a warrant of search, seizure, and verification by a judge of the Busan District Court on August 10, 2017, according to the statement made by a informant that the defendant administered a philophone.

② As articles to be seized in accordance with the above warrant, the following facts are acknowledged: “the suspect’s 30cc, 80 ambs, narcotics, tools for the use or transaction of narcotics, mobile phones in possession of the defendant,” and the place, body or article for search and inspection: “The defendant’s belongings, his/her resident registration, his/her address, his/her actual place of residence, other real place of residence, location location, and vehicles operated exclusively by the defendant.”

③ On August 28, 2017, the investigative agency searched 11:10 the actual dwelling place of the defendant, Busan Shipping Daegu (location omitted) and 4 floors, and seized four divers having a trace of using them at the above site as evidence, for the execution of the above search, seizure and verification warrant.

③ Although the criminal investigation agency demanded the defendant to submit his/her defense and hair with the above warrant on the same opportunity, the criminal defendant resisted against the execution of the above warrant by making the defendant refuse to do so completely for at least three hours.

⑤ At around 15:30 on the same day, in order to prevent the Defendant’s self-harm, an investigative agency requested the Defendant to move the Defendant to an emergency room of the ○○ Medical Center by force and comply with the execution of the above warrant. However, the Defendant continued to refuse this request and confiscated the Defendant’s urine by force by force of the emergency medical technician. As a result of a simple examination of the Defendant’s urine that was seized, the Defendant’s urine training reaction was confirmed, and seized the Defendant’s her hair after taking custody as the Busan Regional Police Agency’s narcotics investigation agency.

Therefore, the defendant's above assertion is without merit.

B. As to the assertion of unfair sentencing

In full view of all the circumstances in the arguments and records of the instant case, including the favorable circumstances (a simple medication, etc.) and unfavorable circumstances (a repeated offense, etc.) presented in the grounds for sentencing, there is no circumstance that the lower court’s determination of sentencing exceeded the reasonable bounds of discretion or is deemed unreasonable (see Supreme Court en banc Decision 2015Do3260, Jul. 23, 2015).

Therefore, since the sentencing of the court below is appropriate, the defendant's assertion is without merit.

3. Conclusion

Therefore, the defendant's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Kim Jong-soo (Presiding Judge)