[1] The meaning of "unaggravated attempted crime" as stipulated in Article 27 of the Criminal Code and the meaning of "unaggravated occurrence of a result"

[2] The timing of commencement of a violation of the Narcotics Control Act due to the import of psychotropic drugs

[1] Article 27 of the Criminal Act / [2] Article 2 subparagraph 3 (b) of the Narcotics Control Act, Article 4 (1) 1, and Article 58 (1) 6 and (3) of the Narcotics Control Act

[1] Supreme Court en banc Decision 2018Do1602 Decided March 28, 2019, Supreme Court Decision 98Do2313 Decided October 23, 1998 (Gong2019Sang, 105) / [2] Supreme Court Decision 93Do3416 Decided March 11, 1994 (Gong1994Sang, 1235), Supreme Court Decision 98Do2734 Decided November 27, 1998 (Gong199Sang, 87)

Defendant

Defendant

Law Firm Sejong, Attorney Kim Young-cheon

Seoul High Court Decision 2018No2129 decided December 13, 2018

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Case history

A. The summary of the facts charged in the instant case is that the Defendant: (a) the Nonindicted Party residing in Vietnam sent out of the Republic of Korea a psychotropic drug, and the Defendant would receive and sell the cambane (hereinafter “cambphone”); (b) the Nonindicted Party concealed the aircraft by inserting 30g of camphone into the camball toy in Vietnam on October 21, 2017; and (c) saving it by international mail; and (d) the Defendant, around October 23, 2017, imported 30g of cambphones in collusion with the Nonindicted Party by receiving cambphones brought into the Republic of Korea via the Incheon International Airport.

B. The first instance court rejected the Defendant’s appeal against the charge of violating the Act on the Aggravated Punishment, etc. of Specific Crimes and convicted the Defendant on the charge of violating the Narcotics Control Act (franking). However, on the ground that there is no proof as to the fact that the value of imported penphones is more than five million won, the first instance court acquitted the Defendant on the grounds that there was no proof as to the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (flag).

C. Unlike the first instance court, the lower court acquitted the Nonindicted Party of the facts charged on the ground that there is insufficient evidence as to the fact that a philophone was used on the liquid contained in the body sent by the Nonindicted Party only by the evidence presented by the Prosecutor.

However, the court below held that the defendant's act constitutes an impossible attempt to commit the crime of importing phiphones, on the ground that the defendant's act constituted an impossible attempt to commit the crime of importing phiphones, on the ground that the non-indicted was likely to result in the non-indicted's act if he actually sent phiphones, and that the defendant's act constitutes an impossible attempt to commit the crime of importing phiphones, and that the defendant's act was attempted to sell phiphones by inviting the non-indicted to inform the non-indicted of the address to receive international mail, but did not contain phiphones.

2. Judgment of the Supreme Court

A. Article 27 (Impossibility of Crime) of the Criminal Act provides, “The punishment shall be mitigated or remitted, if there is a danger that the occurrence of a result is impossible due to an error in the means or object for the commission of the crime.” In short, an impossible attempted crime refers to a case where an attempted crime is punished as a result of an attempted crime, even though there is a criminal intent and an act that can be seen as the commencement of the commission of the crime, there is no possibility of the occurrence of a result or infringement of legal interests from the beginning due to mistake in the means or object of the commission of the crime (see, e.g., Supreme Court Decision 98Do2313, Oct. 23, 1998). Here, the phrase “non-existence of the occurrence of a result” means that the realization

B. The risk of harm caused by the act of importing psychotropic drugs as prescribed by the Narcotics Control Act reaches the number of psychotropic drugs by unloading or bringing them into the ground and by bringing them into the landing or the ground from a ship or aircraft (see, e.g., Supreme Court Decision 98Do2734, Nov. 27, 1998). In addition, in the case of importing psychotropic drugs through international mail, etc. as seen in this case, it may be deemed that a resident in the Republic of Korea started the commission of a crime at the time of submitting a postal item containing psychotropic drugs to the post office of the sending country, etc. where the recipient is indicated as the addressee. Therefore, even if the Defendant was informed of the domestic address of receiving psychotropic drugs to the Nonindicted Party, unless it is revealed that the Nonindicted Party submitted the postal item containing psychotropic drugs to the post office, etc. of the sending country, such act by the Defendant, etc., cannot be deemed as preliminary act of importing psychotropic

C. The Defendant, from the Nonindicted Party residing in Vietnam, concealed a phiphone to import phiphones by melting the phiphones into the liquid body of the Blueb to import the phiphones, and intended to import the phiphones by receiving them through international mail. It is apparent that such an act is too too difficult to generate a result due to the nature of the crime, such as the means of the commission of the act or mistake of the object.

D. Nevertheless, based on the circumstances stated in its reasoning, the lower court determined that the Defendant was unable to commit an offense of violation of the Narcotics Control Act. In so determining, the lower court erred by misapprehending the legal doctrine on impossible attempts under Article 27 of the Criminal Act, thereby adversely affecting the conclusion of the judgment.

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jung-hwa (Presiding Justice)