2016Gohap1190 A. Violation of the Act on the Control of Narcotics, etc. ( marijuana)

(b) Violation of the Narcotics Control Act;

1. A.

2.(a) B

He/she shall file a prosecution, and conduct a trial.

Law Firm C (For Defendant A)

Attorney D in charge, E

Law Firm F (Defendant B)

Attorney G, H, I in charge

February 3, 2017

Defendants shall be punished by imprisonment for one year.

However, with respect to Defendant B, the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.

Defendant B shall be subject to probation for one year and shall be ordered to provide community service for 120 hours.

The evidence Nos. 5 through 7 and 2 (the remaining part excluding the destroyed part after appraisal) from Defendant A shall be confiscated.

The amount of KRW 14.2 million from Defendant A and KRW 17.1 million from Defendant B shall be collected respectively.

To order the Defendants to pay the amount equivalent to each of the above additional charges.

Criminal facts

Defendants are not persons handling narcotics.

1. Defendant A

From January 2016 to September 2016, the Defendant sold approximately 226.2g of marijuana in the same manner as indicated in the list of crimes, including the Defendant, around 28.3g of marijuana, to B, and the Defendant received KRW 1.8 million from that time, from that time, to that time, around eight times in the same manner as indicated in the list of crimes.

Accordingly, the defendant sold marijuana over 8 times.

A person shall be appointed.

2. Defendant B

(a) Purchase of marijuana;

The Defendant purchased marijuana from A on a total of eight occasions at the date, time, and place specified in paragraph (1) of this Article.

(b) Sale of marijuana;

(1) A police officer committing a crime on February 201, 201

On February 2, 2016, the Defendant, at the home of the Defendant in Gangnam-gu Seoul, K and 202, opened approximately 28.3gggs of marijuana purchased from L, e.g., Nos. 1, 2016, and received 3.5 million won from M, and delivered L to the Defendant.

Accordingly, the defendant sold marijuana in collusion with L.

(2) On March 2016, 201

On March 2016, 2016, the Defendant, at the home of the above Defendant, laid off approximately 28.3gs of marijuana purchased to L, such as the No. 4 of the Crimes List of Paragraph 1, and L, after passing this over to M, received KRW 3 million from L to deliver it to the Defendant.

Accordingly, the defendant sold marijuana in collusion with L.

(c) Smoking marijuana;

On January 2016, the Defendant smoked marijuana in the same manner nine times in total, as indicated in the list of crimes, from the beginning of October 2016, as follows, at the above Defendant’s house, among marijuana purchased in drinking cans, such as paragraph (1), by raising the influence of alcohol and smelting the smoke.

A person shall be appointed.

(d) Medication;

At around 2016.10, the Defendant purchased cocars, a drug, from a person whose name is unknown, from a person whose name is not known, and inhaled them into cocos.

Accordingly, the Defendant administered narcotics.

Summary of Evidence

1. Defendant A’s legal statement

1. Defendant B’s partial statement

1. Statements in each of the suspect interrogation records prepared by the defendant A and B by the prosecution;

1. Legal statement of the witness M;

1. Each prosecutor's protocol of examination of L;

1. Each police interrogation protocol on L, M, Defendant B, N,O, or P;

1. Some statements in each police interrogation protocol against Defendant A;

1. A statement prepared by Defendant B;

1. Written consent to the extraction of urines, the suspect B's simplified test results, the request for appraisal, the investigation report (the oral notification of seized articles), the request for appraisal (2016-H-17883), the reply to the request for appraisal -B, and the response to the request for appraisal A;

1. Each protocol of seizure, each list of seizure, evidence No. 2, photograph of seized articles;

1. Investigative report (in the case of simultaneous diagnosis of narcotics Class 6, attachment results), investigation report (in the case of simultaneous diagnosis of narcotics type 6, attachment results), investigation report (specific matters concerning marijuana sales books), criminal place (in the case of addition of suspects, application for warrants), investigation report (in the case of suspect B, response to the results of annual appraisal with countries, such as the suspect B, etc.), investigation report (SNS dialogue between suspects A and B), investigation report (in the case of SNS dialogue), Seoul Central Prosecutors' Office No. 2016 type No. 90588 (L);

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

A. Defendant A

Each former Act on the Control of Narcotics, Etc. (Amended by Act No. 14019, Feb. 3, 2016); Article 59(1)7 and Article 3 subparag. 9 of the former Act on the Control of Narcotics, Etc. (the point of trade in marijuana)

B. Defendant B

Articles 59(1)7 and 3 subparag. 9 of the former Narcotics Control Act (Amended by Act No. 14019, Feb. 3, 2016); Articles 59(1)7 and 3 subparag. 9 of the former Narcotics Control Act (Amended by Act No. 14019, Feb. 3, 2016); Articles 59(1)7 and 3 subparag. 9 of the former Narcotics Control Act (Amended by Act No. 14019, Feb. 3, 2016); Article 30 of the Criminal Act; Articles 61(1)4 (a) and 3 subparag. 10 (a) of the Narcotics Control Act (amended by Act No. 14019, Feb. 3, 2016); Articles 60(1)1 and 3 subparag. 1 (Appointment of imprisonment with prison labor);

1. Aggravation for concurrent crimes;

A. Defendant A

Articles 37 (former part of Article 37, Article 38 (1) 2, and 50 of the Criminal Act (Aggravation of concurrent crimes with punishment prescribed in the Act on the Control of Narcotics, etc. (the Act on the Control of Narcotics, etc. (the Punishment of Narcotics, etc.) due to Sale of marijuana, which is the largest offense)

B. Defendant B

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act, and Article 50 of the same Act, concerning the types of concurrent crimes with punishment prescribed in the Act on the Control of Narcotics, etc. (hereinafter referred to as "the Act on the Control of Narcotics, etc.") due to the sale of marijuana, which was

1. Suspension of execution (Defendant B);

Article 62(1) of the Criminal Act (As stated in the reasons for sentencing below, taking into account the conditions of sentencing under Article 51 of the Criminal Act)

1. Probation and community service (Defendant B);

Article 62-2 (1) and the proviso to Article 62 (2) of the Criminal Act, Article 59 of the Act on Probation, etc.

1. Confiscation;

A. Defendant A

Main sentence of Article 67 of the Narcotics Control Act (No. 5, 6, 7)

B. Defendant B

The main sentence of Article 67 of the Narcotics Control Act [No. 2 (the remaining part except the portion discarded after appraisal)]

1. Additional collection:

A. Defendant A

The proviso of Article 67 of the Narcotics Control Act [Calculation of Additional Collection Amount: 10,200,00 = Aggregate of sales proceeds under paragraphs (1)-1 through 8 of the crime sight table in the judgment of the court]

B. Defendant B

The proviso to Article 67 of the Narcotics Control Act (the additional collection amount of KRW 17.1 million = the aggregate purchase price of KRW 14.2 million in addition to the purchase price of KRW 2-2 million in addition to the purchase price of KRW 1.7 million in addition to the sale price of KRW 2-b. (1) of the judgment + the profit of KRW 1.7 million (=3.5 million - 1.8 million) + the profit of KRW 2-b. (2) of the judgment in addition to the profit of KRW 1.2 million (=3 million - 1.8 million - 1.8 million in the sale price) of the purchased marijuana (paragraph (3) of the sale price), and the part of the purchase marijuana smoking (paragraph (4) of the sale price) shall not be additionally collected on the grounds that there is no basis for calculating the price of the cocoer administered.)

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Judgment on Defendant B and his defense counsel’s assertion

1. Summary of the assertion

① As to the offense of violation of the Act on the Control of Narcotics, Etc. (the Act on the Control of Narcotics, Etc.) due to the purchase of marijuana, punishing an act of simple purchase without any profit-making purpose under Article 59(1)7 of the Act on the Control of Narcotics, etc. is contrary to the principle of proportionality and punishment, as the same as the purchase for profit-making purposes. As such, even if there is a quid pro quo for the purchase for the purpose of simple medication as the Defendant, it should be punished as the “receiving under Article 59(1)

There is no fact that the Defendant purchased marijuana from A and delivered it to L upon request by L to search for marijuana, and there is no fact that the Defendant conspired with L to sell it to M, and there is no fact that the Defendant divided profits from the sale of L and marijuana.

2. Determination on the assertion on the violation of the Act on the Control of Narcotics, etc. by the purchase of marijuana

Article 59(1)7 of the former Act on the Control of Narcotics, Etc. (amended by Act No. 14019, Feb. 3, 2016; hereinafter the same) provides that “any person who manufactures, trades, assists in the trade of, or assists in the trade of, marijuana, in violation of Article 3 subparag. 8 or 9, or who holds it for such purpose, shall be punished by imprisonment for a limited term of at least one year (Article 59(1)7 of the former Act on the Control of Narcotics, Etc.).

As can be seen, Article 58(1)1 and 3 of the former Act on the Control of Narcotics, Etc. provides that the same punishment shall be imposed without simply distinguishing the cases of purchasing marijuana for commercial purposes and without such commercial purposes. On the contrary, in cases of the drugs of partial psychotropic nature known as highly dangerous risks compared to marijuana, the mere purchase without commercial purposes is subject to life imprisonment or imprisonment for not less than 5 years pursuant to Article 58(1)1 and 3 of the former Act on the Control of Narcotics, etc., while the purchase for commercial purposes is subject to death penalty, imprisonment for life or for not less than 10 years, and the purchase for commercial purposes is subject to aggravated punishment by comparing it with those of non-profit purposes. Such differential punishment differs from those of the case where the purchase for commercial purposes is not subject to punishment for illegal marijuana with the case where the purchase for commercial purposes is made for commercial purposes, and thus, it seems that there is considerable possibility of criticism or criticism compared with the case where the purchase is made for commercial purposes (see, e.g., Supreme Court Decision 2003Hun-Ba27).

However, even if there is no commercial purpose, the purchase of marijuana is an act likely to lead to another crime in the state of smoking or the recovery therefrom, and it is generally easy to access it compared to narcotics, etc. in fact, even if it does not lead to other criminal acts such as smoking, it is necessary to block it in advance from the stage of purchase, and unlike the case of narcotics, etc., it is possible to suspend the sentence or suspend the execution without any separate mitigation. In light of the above, it is difficult to conclude that the Article of this case goes beyond the limit of the legislative discretion, or is unconstitutional against the principle of proportionality and responsibility.

Rather, unlike narcotics, etc., the legal provisions of this case do not expressly state the existence of profit-making profits as a requirement for the establishment of crime, and the purchase of marijuana without profit-making purposes as seen earlier cannot be deemed as unnecessary. Considering the fact that there is a gap in punishment if it is interpreted that the "trade" under the provisions of this case does not include the purchase without profit-making purposes, it is reasonable to interpret that "trade" under the provisions of this case includes non-profit purchases. Accordingly, this part of the defendant's assertion is without merit.

3. Determination on the assertion on the violation of the Act on the Control of Narcotics, etc. by the sale of marijuana

The statements made by L’s investigative agency to the purport that correspond to this part of the facts charged are relatively specific and alternative, such as the date and time, place, background of the crime, the words and actions of the Defendant in connection with the marijuana transaction, and the process of determining the transaction price. Even if M’s legal statement is somewhat inconsistent with L’s investigative agency’s statements, such circumstance alone alone is insufficient to reject the credibility of the above L’s investigative agency’s statements. Ultimately, according to the statements made by each investigative agency of the above L’s above L’s credibility, the Defendant can be recognized to acknowledge the fact that the Defendant conspired with L and sold marijuana to M,

Reasons for sentencing

1. Defendant A

(a) The scope of punishment by law;

From 1 to 45 years of imprisonment;

(b) Scope of recommended sentence based on the sentencing criteria;

(a) Type 2 of the Act on the Control of Narcotics, Etc. (mariju, fice item (b) and (c) of the Act on the Control of Narcotics, Etc.) including the basic area and one year to two years; and

(2) The scope of final sentence according to the standards for handling multiple crimes

From 1 to 3 years of imprisonment;

(c) Determination of sentence;

In the case of narcotics-related crimes, not only can the body and mind of an individual due to their declimatic, toxicity, radio wave, etc., but also the risk of undermining the health and social safety of the people. Moreover, the sale of narcotics, etc. is likely to cause spread of narcotics and additional crimes resulting therefrom, and thus, the crime is very serious compared to simple medication, and the possibility of criticism is extremely high. The Defendant sold a total of 226.2ggs of marijuana over eight times every nine months. The issue is not easy in light of the amount of marijuana handled by the Defendant, the period during which the marijuana was traded, and the frequency of crimes.

However, it is against the defendant's full recognition of his own crime, there is no record of criminal punishment except for the same criminal record and the punishment by a fine, support with his wife, and the defendant's wife desires to take the defendant's wife against the defendant. Other circumstances, such as the defendant's age, environment, occupation, family relationship, growth process, economic situation, motive and circumstance of the crime, act of crime and consequence, circumstances after the crime, etc., and the sentencing conditions specified in the records and arguments of this case, including the circumstances after the crime, etc., and the scope of recommended sentences in the sentencing guidelines of the Supreme Court shall be determined as per the order.

2. Defendant B

(a) The scope of punishment by law;

From 1 to 45 years of imprisonment;

(b) Scope of recommended sentence based on the sentencing criteria;

(1) Type 2 of the Act on the Control of Narcotics, Etc. (Offense of Violation of the Act on the Control of Narcotics, etc. (Offense of Bribery), as a result of the sale of marijuana by the Habman on March 2016, including the basic area of marijuana, 1-2 years of imprisonment, and 1-2 years of imprisonment.

(2) Type 2 of the Act on the Control of Narcotics, Etc. (referring to the basic area of marijuana, flagb(b) and (c) of the Act on the Control of Narcotics, Etc. (referring to the act of violation of the Act on the Control of Narcotics, etc.) as a result of the sale of marijuana by a Habman on February 2016,

(3) Type 2 (Specially Convicted Persons: Important investigative cooperation), the mitigation area (important investigation cooperation), the imprisonment of August to June, 201, and the imprisonment of one year and six months.

(4) The scope of final sentence according to the standards for handling multiple crimes

From 1 to 3 years of imprisonment;

(c) Determination of sentence;

In light of the characteristics of the narcotics crime, it is not easy to detect the risks of recidivism, as well as negative impacts on the society as a whole. The Defendant purchased approximately 226.2 ggs in total on eight occasions during a nine-month period, and sold 56.6gs to M on two occasions among the marijuana purchased as above, sold 56.6gs to M on several occasions, smokes purchased, and around October 2016. The crimes are inferior in light of the quantity of the marijuana traded, the period and frequency of the crime, etc.

However, considering the fact that the defendant is recognized as a substitute for his own crime, the fact that there is no same criminal record and has contributed to arresting accomplices by actively cooperating in the investigation, the fact that there is no record of criminal punishment except for punishment once by a fine, the defendant's age, environment, occupation, motive and circumstance of the crime, method and consequence of the crime, all other circumstances that form the conditions of sentencing as shown in the records and arguments of this case, such as the circumstances after the crime, and the scope of recommended sentences in the sentencing guidelines of the Supreme Court, the

The presiding judge, judge and judge

Judges Cho Jae-hwan

Judge Park Jae-il

1) The prosecutor stated 1.8 million won in the indictment, but according to the evidence, it seems to be a clear clerical error of 1.9 million won.

2) The prosecutor stated 1.8 million won in the indictment, but according to the evidence, it seems to be a clear clerical error of 1.9 million won.