(영문) 서울중앙지방법원 2018.10.11. 선고 2018고합707 판결

However, the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive. 2.79 million won shall be collected from the defendant.

Reasons

Punishment of the crime

No person shall trade or smoke marijuana.

1. Around 23:00 on June 2, 2017, the Defendant purchased approximately 2:40,000 g of hemp from the payment of KRW 2,40,00 to E at the distance near the D Station located in Gangnam-gu Seoul.

2. Around 00:00 on June 3, 2017, the Defendant smoked marijuana in a manner that 0.5g of marijuana purchased, such as paragraph (1), in a pipe, in his/her own residence located in the Gangnam-gu Seoul Metropolitan Government F apartment E-dong 303, and in a manner that inhales it by putting about 0.5g of marijuana purchased.

3. Around 18:00 on June 20, 2017, the Defendant purchased approximately 850,000 g of hemp from the payment of KRW 850,00 to E at the distance near the G Station located in Gangnam-gu Seoul.

4. Around 00:00 on June 23, 2017, the Defendant smoked approximately 0.5g of marijuana purchased, as described in paragraph (2), in the manner described in paragraph (3).

5. On August 11, 2017, the Defendant paid KRW 850,00 to E and purchased approximately KRW 7g of marijuana from E at the nearest distance of Gangnam-gu Seoul, Seoul, at around 17:30,000.

6. Around 00:00 on August 11, 2017, the Defendant smoked approximately 0.5g of marijuana purchased, as described in paragraph (2) and paragraph (5), in the same manner as Paragraph (2). Around 16:00 on September 20, 2017, the Defendant paid KRW 850,00 to E, and purchased approximately 7g of marijuana.

8. Around 00:00 on September 22, 2017, the Defendant smoked approximately 0.5g of marijuana purchased as indicated in paragraph (2), and as indicated in paragraph (7), in the same manner as Paragraph (2). Around 03:0 on November 5, 2017, the Defendant smoked approximately 0.5g of marijuana purchased as indicated in paragraph (2) in the same manner as Paragraph (2). Around 14:30 on November 14:30, 2017, the Defendant carried approximately 5.7g of the diesel mills containing marijuana ingredients in the kitchen in the same manner as Paragraph (2).

Summary of Evidence

1. Defendant's legal statement;

1. Examination protocol of suspect E by the prosecution;

1. Records of seizure, list of seizure, and photographs of articles seized by the suspect;

1. A written appraisal of each drug;

Application of Statutes

1. Article applicable to criminal facts;

Articles 59(1)7 and 3 subparag. 7 of the former Narcotics Control Act (amended by Act No. 14353, Dec. 2, 2016; enacted June 3, 2017); Articles 59(1)7 and 3 subparag. 7 of the former Narcotics Control Act (amended by Act No. 15481, Mar. 13, 2018; hereafter amended by Act No. 15481, Sept. 14, 2018; hereafter amended by Act No. 15481, Sept. 14, 2018; hereafter amended by Act No. 15481, Sept. 13, 2018); Articles 59(1)7 and 3 subparag. 7 (B) of the former Narcotics Control Act (amended by Act No. 15481, Mar. 13, 2018; hereafter amended by Act No. 15501, Sep. 14, 2018); Article 16 subparag. 14(a.

[Judgment as to the application of the former Act shall not be based only on 'No.' itself, but also on the basis of 'a single sentence' (unit theory).

1. Aggravation for concurrent crimes;

Articles 37 (former part of Article 37, Article 38 (1) 2, and 50 (Aggravation of concurrent crimes with the punishment provided for in the Act on the Control of Narcotics, etc. (hereinafter referred to as the "Act on the Control of Narcotics, etc.") due to the purchase of marijuana on September 20, 2017) of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act (The following consideration of favorable circumstances among the reasons for sentencing):

1. Additional collection:

The proviso to Article 67 of the Narcotics Control Act 2.79 million won in total

○ Purchase of 2g mariana under Paragraph (1) of the crime: 240,000 won (=amount equivalent to the purchase price)

○ Smoking of marijuana 0.5g under paragraph (2) of the crime: Since it is part of the marijuana purchased under paragraph (1) of the crime, it shall not be additionally collected in duplicate.

○ Purchase of marijuana 7gs under Paragraph (3) of the crime: 850,000 won (=amount equivalent to the purchase price)

○ Smoking of marijuana 0.5g under paragraph (4) of the criminal facts: Since it is part of the marijuana purchased under paragraph (3) of the criminal facts, it shall not be additionally collected in duplicate.

○ Purchase of marijuana 7gs under Paragraph (5) of the crime: 850,000 won (=amount equivalent to the purchase price)

○ Smoking of marijuana 0.5g under paragraph (6) of the criminal facts: Since it is part of the marijuana purchased under paragraph (5) of the criminal facts, it shall not be additionally collected in duplicate.

○ Purchase of marijuana 7gs under Paragraph 7 of the crime: 850,000 won (=amount equivalent to the purchase price)

○ Criminal facts Nos. 8 and 9. 0.5g mari-mari-mari-mari-mari-mari-mari-mali: No. 7 of marijuana shall be additionally collected.

○ Facts constituting an offense No. 10(s) 5.7g possession: It shall not be collected as a result of the destruction of the whole quantity after appraisal.

1. The grounds for sentencing: Imprisonment with prison labor for not less than one year but not more than 45 years;

2. Scope of recommended sentences according to the application of the sentencing criteria: Imprisonment with prison labor for not less than eight months but not more than two years and not more than nine months;

(a) Basic crimes and concurrent crimes: Offenses of violation of the Act on the Control of Narcotics, etc. by the purchase of marijuana: Three or more concurrent crimes, and thus, the most serious criminal shall constitute basic crimes of violation of the Act on the Control of Narcotics, etc. ( marijuana) and crimes of concurrent crimes of violation of the Act on the Control of Narcotics, etc. by the purchase of marijuana;

[Scope of Recommendation] Reduction Area (8 months to one year and six months) of Type 2 (marijus, flags, item (b) and (c), etc.)

[Special Mitigation] Purchasing or receiving for medication or simple possession

(b) The scope of final sentence due to the aggravation of multiple offenses: 8 months to 2 years and 9 months;

3. Determination of sentence: One year of imprisonment and two years of suspended sentence;

It is necessary to strictly cope with the negative impacts of narcotics-related crimes on society due to harm to public health and decracy and toxicity. The number of crimes committed by the accused is not large. These circumstances are disadvantageous to the accused.

However, the Defendant’s mistake is against the other party, and the Defendant purchased marijuana for the purpose of simple smoking without any purpose of distributing marijuana to the other party. The Defendant is the primary offender. These circumstances are favorable to the Defendant.

In addition to the above circumstances, the punishment as ordered shall be determined in consideration of all the sentencing conditions, such as the defendant's age, character and conduct, intelligence and environment, motive, means and consequence of the crime, and the circumstances after the crime.