Defendant

Defendant

Sponsorse Park Gyeong-Gyeong

Attorney Lee Jin-bok (National Assembly)

Seoul Southern District Court Decision 2010Ma1502 Decided November 10, 2010

The judgment of the court below is reversed.

The defendant shall be innocent.

1. Summary of grounds for appeal;

Since the court below rendered a guilty verdict on all the facts charged of this case on the basis of only the statements made by Non-Indicted 1, which are not reliable, the court below erred by misapprehending the rules of evidence.

2. Summary of the facts charged in this case and the judgment of the court below

A. Summary of the facts charged in this case

On May 2, 2006, the Defendant sentenced one year and six months to imprisonment for a violation of the Act on the Control of Narcotics, etc. (fence), etc. at the Chuncheon District Court Gangseo Branch Branch on May 2, 2006, and completed the execution of the sentence in the Gangnam Prison on May 22, 2007.

1) 피고인은 2009. 8. 중순 12:00경 서울 양천구 목동 소재 (이하 생략) 공소외 1의 집에 택배로 1회용주사기에 들어있는 향정신성의약품인 메스암페타민(일명 필로폰, 이하 필로폰이라고 함) 약 0.2ｇ을 무상으로 배달시켜 공소외 1이 이를 수령하게 하였다.

Accordingly, the Defendant delivered a philophone to Nonindicted Party 1.

2) 피고인은 2010. 2. 초순 23:00경 대구 달서구 장기동 소재 홈플러스 앞 노상에 주차된 피고인의 차 안에서 공소외 1로부터 필로폰 3작대기 약 2.5ｇ을 100만원에 매수하였다.

3) 피고인은 제2항 기재 일시경 위 자동차 안에서 공소외 1과 함께 각자 필로폰 약 0.1ｇ씩을 1회용주사기에 집어넣고 생수로 희석한 후 각자의 팔 혈관에 주사하는 방법으로 필로폰을 투약하였다.

4) On April 2010, the Defendant: (a) received Nonindicted 1’s request from Nonindicted 2, who received the request from Nonindicted 2, and received the request from Nonindicted 1 to request him to seek a phiphone; and (b) paid the phiphone purchase price into the head of the Tong. Accordingly, Nonindicted 1 had Nonindicted 2 deposit the phiphone purchase price with Nonindicted 2,50,000 won; and (c) remitted the purchase price to the new bank account in the name of Nonindicted 4.

피고인은 그로부터 3일 후인 2010. 4. 중순 19:00경 대구 소재 북부정류장에서 공소외 1로 하여금 피고인이 강릉에서 버스수화물편으로 보낸 필로폰 약 8ｇ이 든 화물을 찾게 하는 방법으로 필로폰을 매매하였다.

B. The judgment of the court below

The lower court found the Defendant guilty on all the charges of the Defendant by comprehensively taking account of the witness Nonindicted 1’s legal statement, the part concerning Nonindicted 1’s statement among the prosecutor’s interrogation protocol against the Defendant, and each prosecutor’s protocol against Nonindicted 1 and 3

3. The judgment of this Court

Of the evidence presented by the court below as evidence to find the defendant guilty, the contents of the prosecutor's statement (the original prosecutor's statement omitted from the original prosecutor's list and the additional examination of evidence was made in the trial) against Nonindicted 3 is that Nonindicted 3 administered a phiphone with Nonindicted 1 at the office of Nonindicted 1 in the middle of August 2009, and Nonindicted 3 administered a phiphone with Nonindicted 1 in the middle of August 2009, and it was only one time after the introduction of Nonindicted 1 in the middle of 2009, but the circumstances related to phiphone between the Defendant and Nonindicted 1 are entirely known. Accordingly, the evidence corresponding to the facts charged in the instant case is true.

However, in a criminal trial, the burden of proof for the criminal facts prosecuted in the criminal trial is to be borne by the prosecutor, and the conviction is to be based on the evidence with probative value that makes the judge feel true beyond a reasonable doubt. Thus, if there is no such evidence, even if there is doubt for guilt against the defendant (see Supreme Court Decision 2006Do735, Apr. 27, 2006, etc.). In full view of the following circumstances acknowledged by the records of this case, the statement by Nonindicted Party 1 is insufficient to believe that its credibility is insufficient, and it is insufficient to recognize that the defendant either delivered or purchased telephonephones to Nonindicted Party 1 as stated in the facts charged of this case, and there is no other evidence to prove otherwise.

① On May 12, 2010, Nonindicted Party 1 stated at the prosecutorial office that Nonindicted Party 1 introduced the Defendant to Nonindicted Party 3 as “a person who sent a philopon from Gangnamn in the front.” However, Nonindicted Party 3 stated that Nonindicted Party 1 sent the philopon from Gangnamn in the course of the investigation by the prosecutor’s office that Nonindicted Party 3 sent Nonindicted Party 1 the philopon from Gangnamn to the Defendant.

② In relation to Articles 2 and 3 of the facts charged in the instant case, Nonindicted Party 1 stated that, on May 11, 2010, Nonindicted Party 1 sold phiphones to the Defendant and administered phiphones with the Defendant immediately following the sale of phiphones to the Defendant, which was parked in the front of the Home Packer located in Daegu-gu Office on February 201, 2010, but on May 12, 2010, Nonindicted Party 1 stated that the Defendant sold phiphones to the Defendant on the front of the said Home Packer’s own lane and the Defendant sold phiphones to the head of Nonindicted Party 1’s vehicle.

③ In relation to the instant facts charged No. 4, Nonindicted Party 1 stated that Nonindicted Party 2 and 5 had the Defendant send Nonindicted Party 2 and 5 with a passbook designated by the Defendant from April 2010, the investigative agency sent KRW 2.5 million to the head of the passbook designated by the Defendant. After three days thereafter, Nonindicted Party 1 stated that he/she sought approximately 8g of the phone-phone that he/she sent the Defendant’s phone-phone purchase price to the bus freight. However, in the court of the lower judgment, Nonindicted Party 1 stated that the Defendant was found to have sent the Defendant the phone-phone purchase price to the Defendant.

④ On April 20, 2010, the Defendant asserted that he borrowed KRW 2.5 million from Nonindicted 1 to Nonindicted 4, and in fact, he deposited KRW 2.5 million in the name of Nonindicted 8 on April 20, 2010 in the single bank account of Nonindicted 4, the Defendant’s children. Nonindicted 6 borrowed KRW 700,000 from the Defendant in the lower court on April 20, 2010 at the lower court’s trial, and the Defendant appeared to have been summoned to receive a demand call from the person who is Daegu East, and later, he was aware of that he was Nonindicted 1. In addition, on August 17, 2010, the Defendant paid KRW 2.5 million to the 700,500,000,000,000 from his mother.

⑤ Nonindicted Party 1 was sent to the prosecution on May 4, 2010, and instead, informed the Defendant and other persons, Nonindicted Party 1 was subject to the prior action, such as not being prosecuted as the instant facts charged.

④ On May 12, 2010, the defendant taken from the Seoul Southern District Prosecutors’ Office on May 12, 2010, immediately after the arrest of the defendant, and the defendant’s 2-4cm with 2-4cm without detection of opon ingredients. However, since opon grow by 0.23mm a day around 1st century, the above opon 2) and 3) are the body of the defendant who was growing to the first patrolman on February 2010.

Therefore, the court below erred by misunderstanding facts against the rules of evidence and thereby affecting the conclusion of the judgment, and the defendant's assertion pointing this out is justified

4. Conclusion

Therefore, the defendant's appeal is justified, and the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

The summary of the facts charged in this case is as seen in the above 2. A. This constitutes a case where there is no proof of crime as seen earlier, and thus, a not-guilty verdict is rendered pursuant to the latter part of Article 325 of the Criminal Procedure Act.

The establishment of a judge Lee Jong-young (Presiding Judge)