[1] The method of determining whether the facts charged with the medication of narcotics are specified

[2] In a case where: (a) the Defendant was indicted of violation of the Narcotics Control Act (fluence) on the ground that he administered a phiphone; (b) the date and time of the indictment was presumed to be the “ around November 201, 2010,” and (c) the place where the medication was declared to be “influences below the fluoricsium”; and (b) the case affirming the judgment below dismissing the prosecution for the same purport on the ground that it is difficult to view that the facts charged were specified in light of the characteristics of the narcotics medication

[1] Article 254(4) of the Criminal Procedure Act / [2] Article 2 subparag. 4(b), Articles 4(1), and 60(1)3 of the Narcotics Control Act (Amended by Act No. 10786, Jun. 7, 201); Articles 254(4) and 327 subparag. 2 of the Criminal Procedure Act

Defendant

Prosecutor

Busan District Court Decision 2011No1680 Decided August 18, 2011

The appeal is dismissed.

The grounds of appeal are examined.

1. According to the reasoning of the judgment below and the reasoning of the judgment of the court of first instance cited by the court below, the court of first instance dismissed the prosecution on the ground that it is difficult to view the facts charged in this case as a specific fact-finding meeting the requirements of Article 254(4) of the Criminal Procedure Act, and the court below affirmed the judgment of the court of first instance on the ground that the period of medication was estimated to be less than 4-5§¯ in the length of 4-5§¯, based on the result of the maternal evaluation that the Defendant’s flaon training reaction had taken place from the mother of the Defendant’s fladon, which is the date of the crime in this case.

2. Article 254(4) of the Criminal Procedure Act provides that “The facts charged shall be stated clearly by specifying the time, date, place, and method of a crime.” The purport of the Act requiring the specification of the facts charged lies in confirming the object and scope of the court’s trial and the scope of the public prosecution and guaranteeing the defendant’s right to defense. Therefore, it is sufficient that the facts constituting the crime charged are stated to the extent that it is recognizable from other facts by comprehensively taking account of these elements. Although the time, place, method, etc. of a crime are not specified in the indictment, it does not go against the purport of the Act allowing the specification of the facts charged, in light of the nature of the crime charged, and if it is inevitable to indicate the facts charged, and there is no difficulty in exercising the defendant’s right to defense, the contents of the indictment do not necessarily mean that it was not specified (see Supreme Court Decision 2008Do4854, Jul. 24, 2008).

On the other hand, since the crime of medication is often conducted without witness in a remote space where the crime is committed and it is extremely difficult to secure relevant evidence, the characteristics of the crime should be fully considered in determining whether to specify the facts charged. However, even though the defendant denies the fact of administration of philopon and the defendant did not secure clear evidence about it, it should be carefully determined whether the contents of prosecution are specified in the case where the facts charged are stated by pointing out the period of administration based on the results of the assessment of maternity, although the defendant presumed the period of administration based on the results of the assessment of maternity, and even if not, it should be determined

First of all, the maternity appraisal to clarify the fact of medication of narcotics can serve as an external factor such as the test condition, and the method of estimating the period of medication based on the result is premised on the fact that the growth speed of hair is fixed, but in fact there is a big difference in the growth speed of hair depending on the individual. In the case of the same person, there is a difference in the number of hairs according to the recovery level, health condition, and there is a problem that it is difficult to trust its accuracy because the hairs in the recovery stage are mixed.

In addition, the presumption of the period of medication based on the results of the Masction test is many times more than a few months. In light of the characteristics of the narcotics medication crime where it is difficult to deny the possibility of medication several times during that period due to the characteristics of the narcotics medication crime, setting the estimated period of medication by such a method as the time of the crime charged can significantly interfere with the defendant's exercise of his/her right to defense, and there is a problem that is difficult to determine the scope of double prosecution or the effect of res judicata, which constitutes a separate crime, depending on the nature of the narcotics medication crime

Therefore, even if the prosecutor considers various circumstances asserted in the grounds of appeal, the facts charged in this case are merely presumed to have been simply estimated the date, time, place, and method of medication based on the result of the Mascam test against the defendant denying the crime. In particular, the term " around November 2010" stated as the time of the crime may include more than one month, and it is difficult to view that the contents of the indictment were specified in light of the characteristics of the narcotics crime as seen above. The judgment below to the same purport is justifiable, and there is no error of law by misapprehending the legal principles as to the specification of the facts charged,

3. Therefore, the appeal is dismissed by the assent of all participating Justices. It is so decided as per Disposition by the assent of all participating Justices.

Justices Ahn Dai-hee (Presiding Justice)