(영문) 서울중앙지방법원 2017.11.9. 선고 2017고합937 판결

Despite the fact that the Defendant is not a person handling narcotics, the Defendant dealt with the following psychotropic drugs-related Mepters (hereinafter referred to as 'philopon'), MDMA (hereinafter referred to as 'Epopon'), and Kenya as follows:

1. D and co-offenders;

The defendant and D had the market value marginal profits by importing narcotics such as phiphonephones in Thailand and selling them in Korea.

(a) Import of narcotics;

On August 8, 2017, the Defendant: (a) concealed approximately 2 g of opphonephones in Thailand via Stachis; (b) concealed in Stachis; and (c) stored in Stachis in Stachis where approximately 2 g of Kenyas are carried out by storing the F community service center goods in E in Stachis by means of international contact (Ems); and (d) found the said opphones, etc. contained in the international opports on August 11, 2017.

Accordingly, the defendant imported philophones, X-gu and Kenya in collusion with D.

B. The narcotics salesD subdivided narcotics imported into the above, concealed them in subway goods storage boxes, etc., and sent them to the Defendant with the receipts, photographs and passwords kept in custody, and the Defendant conspired to sell narcotics in a manner that, by regulating the transaction conditions of narcotics, etc. with purchasers in Korea using mobile phone hosting displays in Thailand, transferred sales proceeds to the Defendant’s account under the name of the purchaser, and then delivers the receipts, photographs and passwords kept in the above custody to the purchaser, thereby enabling the purchaser to search for narcotics.

D In keeping the goods No. 133 H subway Station 13 in Jongno-gu Seoul Metropolitan Government, the 2g Kenya and X-gu 1, and then notify the Defendant of the receipts and passwords kept. On August 12, 2017, the Defendant received 80,000 won from a new bank account (I) account in the name of the Defendant in the name of the Defendant from a person who was not registered in the name of the Defendant, and then sent the number and password to the person who was not registered in the name of the Defendant, and then sent the number and password to the person who was not registered in the name of the Defendant. At that time, the Defendant sought the X-si and the Kenya.

As a result, the Defendant conspired with D to sell X-gu and Kenya.

2. Import of narcotics;

A. The Defendant traded K and Handphone 4g of a mobile phone with approximately KRW 1.1 million, but intended to deliver them by international call service (Ems) in Thailand.

On July 11, 2017, the Defendant received 80,000 won from K to the said new bank account under the name of the Defendant, and sent 4 g of opphones to K with the intention of several addresses, and then sent the transport note to K, and at around 21:43 of the same day, he received the remainder of 30,000 won from K to the said account. Afterwardly, on July 15, 2017, the Defendant received 4 g of opphones from the Daejeon-gu L and 401 to the international opphones (EM).

Accordingly, the defendant imported philophones in collusion with K.

B. On July 22, 2017, the Defendant concealed approximately 10 ghon-phones, 10 X-si, and 0.15 g hon-si, X-si, and Kenyan 0.15 g in the kitchen for travel between clothes and clothes, on board M, and arrived at the Incheon National Port in Jung-gu Incheon Metropolitan City, Jung-gu, on July 22, 2017.

Accordingly, the Defendant imported philophones, X-gu and Kenyas.

3. Sale of narcotics;

On July 31, 2017, the Defendant: (a) decided to sell and sell P and Handphones using “Ethical N”; and (b) on July 31, 2017, the Defendant received KRW 6.50,000 from P to the bank account ( Q) in the name of the Defendant; (c) notified P of the serial number and password of the goods storage box of the R railroad No. 1 in which the 2g of opphones are concealed, and P sought the above opphones.

Accordingly, the defendant sold philophones.

4. Receipt of narcotics;

A. On July 22, 2017, the Defendant issued two vinyls with approximately 2g of philopon, X-si 4, and approximately 0.15g of Kenya to D at the guest room near T Station located in Jung-gu Seoul, Seoul.

B. Around July 30, 2017, the Defendant added approximately two g of phiphones to D in V guest rooms located in the Jung-gu Seoul Metropolitan Government U.

In this respect, the defendant received narcotics such as philophones more than twice.

5. Medication of phiphones.

At around 01:00 on August 28, 2017, the Defendant injected approximately 0.01 g opphones in the pipe for smoking and then injected them in a manner of inhaleing the smoke.

Summary of Evidence

1. Defendant's legal statement;

1. Examination protocol of the accused by prosecution;

1. Each police interrogation protocol on P, K, and D;

1. Each protocol of seizure and the list of seizure;

1. Results of the appraisal report on narcotics and the inspection on small and minor reagents;

1. The pictures of each seized article, seized photograph, K's cell phone hosting photographs, etc., details of the account transactions in Korea, details of new bank account transactions, transportation notes and advertisements, mobile phone hosting photographs, records of account transactions in A, records of account transactions in Gap's name, records of account transactions in A, records of international telephone delivery, contents of A-D X conversations sent by A to D, records of accounts in Korea, and photographs kept on December 12, 178;

1. An investigation report (the details of account in the name of theA and the details of entry or departure), investigation report (the market price report and the calculation of the amount additionally collected);

Application of Statutes

1. Article applicable to criminal facts;

Articles 58(1)6, 4(1)1, and 2 subparag. 3(b) of the Criminal Act and Article 30 of the Criminal Act (excluding Article 30 of the Criminal Act as to the importation of penphones, etc. on July 22, 2017 as to the importation of penphones, etc. on July 22, 2017 as indicated in Article 2(b) of the Act on the Control of Narcotics, Etc., Articles 60(1)2, 60(1)1, and 4(1)3(b) (i.e., the trade of penphones, Xters, Kenyas, and Kenyas, the receipt of penphones, the fact of the receipt of part-phones, the fact of the partially administered, and Article 30 of the Criminal Act as to the purchase and sale of carculs, in collusion with D as described in Article 1(b) of the Act on the Control of Narcotics, etc.)

1. Commercial competition;

Articles 40 and 50 of the Criminal Act (the punishment on the violation of the Act on the Control of Narcotics, etc. (fence) due to the importation of philophonephones, X masterss, and Kenyas, the punishment on the violation of the Act on the Control of Narcotics, etc. (fence) due to the importation of philophones, which are publicly recruited with No. 1-B, and the punishment on the violation of the Act on the Control of Narcotics, etc. (flatations) due to the sale and purchase of Kenyas, each of the crimes of violation of the Act on the Control of Narcotics, etc. (flatations) due to the sale and purchase of Kenyas, the punishment on the violation of the Act on the Control of Narcotics, etc. (flatations), the punishment on the violation of the Act on the Control of Narcotics, etc. due to the importation of philophones with No. 1-B written in No. 1-B and Kenyas, the punishment on the violation of the Act on the Control of Narcotics, etc. (flatations) due to the largest.).

1. Selection of punishment;

In regard to the crimes of violation of the Act on the Control of Narcotics, etc. (flaging), each of the crimes of violation of the Act on the Control of Narcotics, etc. (flaging), on the basis of import of phiphones, imprisonment with prison labor for the crimes of violation of the Act on the Control of Narcotics, etc. (flaging),

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act [Aggravation of concurrent crimes resulting from the importation of philopon on July 22, 2017, listed in subparagraph 2-b of Article 2 of the Judgment with the largest criminality]

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following consideration for the reasons for sentencing):

1. Confiscation;

The main sentence of Article 67 of the Narcotics Control Act

【Judgment on the Confiscation Penalty of Public Prosecutor】

Article 48(1)1 of the Criminal Act provides that "any article which has been, or intends to be, provided for an act of crime as an article that can be confiscated." The term "article which was intended to be provided for an act of crime" refers to an article which has been prepared to be used for an act of crime but has not been actually used. In light of the fact that confiscation under the Criminal Act is sentenced in addition to other punishment in addition to a conviction against the accused who is under a criminal trial, it should be recognized that "any article which is intended to be provided for an act of crime" is "the article which is intended to be provided for an act of crime" and that is intended to be provided for an act of crime that is found guilty (see Supreme Court Decision 2007Do

On August 29, 2017, at the time of entry into the Incheon Airport, the Defendant held one machine (Evidence No. 1), one electronic storage book (Evidence No. 2), and 247 (Evidence No. 3), and the above evidence No. 1 through 3 were seized to an investigation agency, and the prosecutor sought confiscation for all of the above evidence No. 1 through 3. However, according to the evidence duly adopted and examined by the court, even if the Defendant was deemed to have used the penphone medication as stated in Paragraph 5 of the above evidence No. 2 and No. 3, it can be seen that the Defendant attempted to provide the above goods to a criminal act related to narcotics, which the Defendant tried to practice at the charging of the above goods, and the evidence submitted by the prosecutor alone does not sufficiently prove that the above goods were provided or intended to be provided to each of the criminal acts of this case.

Therefore, subparagraphs 2 and 3 of Article 67 of the Narcotics Control Act and Article 48 (1) 1 of the Criminal Act cannot be deemed to be subject to forfeiture, thus, they shall not be confiscated.

1. Additional collection:

The proviso of Article 67 of the Narcotics Control Act

[Calculation of Additional Collection] ① The total amount of KRW 800,00,000 in the purchase price of clophones imported as stated in Paragraph (1) of Article 2 of the Decision 1 + (3) The total amount of clophones imported as stated in Paragraph (b) of Article 2 of the Decision 1 + The total amount of KRW 1,100,000 in the purchase price of clophones imported as stated in Paragraph (1) of Article 2 of the Decision + The total amount of KRW 10,100 in the Decision 30,100 in the clophonephones imported as described in paragraph (2) of the Decision, 10,00 in the clophones, X-si, and 0.15g in the opinion, excluding 4g, X-si, 40,000 in the remaining clophones, 00,000 won in Seoul, 000,000 won in the opinion of the Supreme Prosecutors' Office for 0.

【Judgment on Penalty Surcharged by Prosecutor】

The Kim Jong-gu sought collection of the full value of the penphone, X-gu, and Kenyan's imported as described in paragraphs 1-a and 2-b in the decision of the defendant.

However, according to the evidence duly adopted and examined by this court, the Defendant: (a) delivered part of the penphonephone, X-si, Kenya as described in paragraph (1) of the judgment, and part of the penphone, X-si, Kenya-si, Kenya-si imported as described in paragraph (2) of the judgment; (b) sold as described in paragraph (1) of the judgment of the Defendant, as described in paragraph (1) of the judgment of the first instance, 2g of the X-si, X-si, and X-si, and 1 of the X-si; (c) while being kept by mixing the remaining penphones delivered by the Defendant with the Defendant, it is recognized that most of them was seized to investigation agencies.

If the facts are different, the part which was delivered to D among the penphones, X masterss, and Kenyas imported from No. 1-A and 2-B of the judgment and finally seized to the investigation agency cannot be confiscated. Furthermore, since there is no evidence to specify the quantity of the above seized penphones, etc. on the records of this case, this case cannot be sentenced to confiscation of the above seized penphones. Therefore, in the case of the defendant, as described in No. 1-A, the amount equivalent to the purchase price of 27 g and 1-2 g and 2-2 of the above judgment after delivery to D shall not be collected, and the remaining part excluding this shall not be collected, as stated in No. 2-B of the judgment of the court below, from the fact that the defendant imported as stated in the judgment of the court below, and the amount equivalent to the purchase price of 2 g and 2-g g g grams imported to the investigation agency as stated in No. 1-B, and the remaining part shall not be collected.

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Reasons for sentencing

1. The scope of punishment: Imprisonment for a period of two years and six months to twenty-two years;

2. Reference to the sentencing criteria;

(a) Basic crimes and concurrent crimes: Violation of the Act on the Control of Narcotics, etc. (flavoring) due to the import of phiphones;

[Determination of Type] Manufacturing, etc. of Import and Export of Narcotics (Narcotic drugs, perfumea (b), etc.)

【Special Convicted Person】

[Recommendation and Scope of Recommendation] Basic Field, 4 years to 7 years of imprisonment

(b) Results according to the standards for handling multiple crimes: Imprisonment with prison labor for a period of four years to 12 years;

3. Determination of sentence;

[In light of the specific contents and frequency of the crime in this case, it is inevitable to punish the Defendant in light of the following: (a) narcotics-related crimes have been committed three times; (b) narcotics, etc. imported by the Defendant are various; (c) the type of narcotics, etc. imported by the Defendant are diverse; (d) the Defendant attempted to sell narcotics, etc. to many and unspecified persons in a full-time manner; and (e) the Defendant, who actually sold or delivered narcotics, etc. to distribute a large amount of narcotics, etc. to many and unspecified persons; and (e) in light of the specific contents and frequency of the crime in this case, such as: (a) the importation of phiphones, X posters, and Kenyas, etc.; and (b) the importation of phiphones, etc., once in a short period, has been carried out by importing narcotics, etc.; and (b) the Defendant attempted to sell narcotics, etc. to many and unspecified persons; and (c) the Defendant attempted to sell narcotics, etc. in fact, and distributed them.

[I] The Defendant’s mistake from an investigative agency to this court is seriously against his will, and there is no record of punishment for a criminal act other than that sentenced to a fine once prior to the instant crime. In other words, the Defendant has to refrain from committing a crime related to narcotics, and the Defendant’s family members have been led to a correct way.

In addition, in comprehensive consideration of the defendant's age, character and conduct, environment, family relationship, motive and background of each of the crimes of this case, circumstances after the crime, etc. and all the sentencing factors specified in the records and arguments of this case, the punishment shall be set lower than the lower limit of the recommended sentencing guidelines mentioned above.

Judges

The presiding judge, judge Kim Jong-tae

Judges Kim Gin-han

Support for judges' organization

Note tin

1) The facts charged in the instant case include that the Defendant and K will trade 4g of phiphonephones with “1 million won”, and that the Defendant received 80,000 won and KRW 300,000 from K twice through two times. However, according to the evidence duly adopted and investigated by this court, the Defendant would trade 4g of phiphones with K and KRW 11,50,000,000,000 from K to the Defendant’s new bank account at KRW 16:47 on July 11, 2017, and received 850,000 won from K to the Defendant’s new bank account at KRW 21:43 on the same day. Accordingly, the above “1 million and KRW 8,000,00 as stated in the facts charged in this part shall be deemed to be a clerical error, but it shall be recognized as correcting only the amount of the transaction as described above within the scope of the public prosecutor’s indictment.

2) According to the evidence duly adopted and examined by this court, the remaining philophones, etc., except for the above 2g of Kenya and 1 X-si, are not seized. However, as seen earlier, it is impossible to identify the subject of collection on the ground that there is no evidence to discover the quantity of the philophones seized on the record, etc., and thus, it is not possible to additionally collect the portion except the above Kenya, etc.

3) In the case of a crime in a mutually competitive relationship, the sentencing criteria shall not be deemed to apply, but shall be see, as appropriate, the sentencing criteria as follows:

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