(영문) 서울중앙지방법원 2018.7.25. 선고 2018고합283 판결

However, the execution of the above punishment shall be suspended for a period of two years from the date this judgment became final and conclusive. 803,000 won shall be collected from the defendant.

The amount equivalent to the above additional collection charge shall be ordered to be paid provisionally.

Reasons

Criminal facts

Despite the fact that the Defendant is not a narcotics handler, he dealt with psychotropic drugs such as Metropules (hereinafter referred to as 'philophones') and marijuana as follows:

1. Purchasing philophones;

Around August 2015, the Defendant decided to purchase a philopon from a seller (one name B, CAD) whose name is unknown in the Philippines. On September 17, 2015, the Defendant, around 17:00, ordered F to receive the door-to-door call from G, who received instructions from 'B' before the 1st floor of Gangnam-gu Seoul E Multi-household, to Kwikset service, and purchased a philopon by using a philopon which contains 2g of the said philopon around the same day.

2. Smoking or taking in marijuana;

On January 28, 2018, from around February 14, 2018 to around February 14, 2018, the Defendant smoked or taken marijuana’s in an influorous manner at the influoral date and at the influoral area below four arms. The summary of the evidence is as follows.

1. Partial statement of the defendant;

1. Legal statement of witness G;

1. Partial statement of the witness F in the court;

1. Partial statement of the interrogation protocol of the accused in the second interrogation protocol by the prosecution;

1. An interrogation protocol of F by prosecution;

1. Partial statement of each police interrogation protocol against the accused;

1. Police suspect interrogation protocol regarding F;

1. A copy of the fourth interrogation protocol of G police officer;

1. Korean national detention (Evidence Nos. 2), investigation report (related to the H substituteization contents stored in a suspect mobile phone), investigation report (related to the list of evidence, No. 59), investigation report (F on the investigation report on the request for appearance, No. 60), personal immigration status (Evidence No. 62), investigation report (Evidence No. 62), investigation report (C dialogue content, Evidence List No. 69), C dialogue (Evidence No. 70), investigation report (Evidence No. 48), evidence list (Evidence No. 48), G1 court decision (Seoul Central District Court Decision No. 2015 High Court Decision No. 5727, Evidence List No. 78), investigation report (Evidence No. 83), evidence list (Evidence No. 84)

1. Copy of the protocol of seizure (G Seoul Central District Prosecutors' Office No. 82885, No. 8285, No. 80), list of seizure (Evidence No. 81), photograph of seized articles (Evidence No. 82);

1. Investigation report (investigation of the results of the close testing and assessment of narcotics conducted by the F and the dynamics of the public offense, Nos. 21 of the evidence list), and prosecution report (A conspiracy appraisal results, No. 50 of the evidence list);

1. A narcotics appraisal statement (Evidence Nos. 44), an investigation report (an investigation of the date and place of a crime for smoking marijuana by a suspect A, and an investigation of the presumption of the date and place of the crime, 45 No.

1. Report on investigation (report on the calculation of a surcharge and the application of Acts and subordinate statutes 53);

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

Article 60(1)2, Article 4(1)1, Article 2 subparag. 3(b) (in the case of purchase of writingphones, choice of imprisonment), Article 61(1)4(a), and Article 3 subparag. 10(a) (in the case of smoking or taking in marijuana, choice of imprisonment) of the Narcotics Control Act

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act shall apply mutatis mutandis to concurrent crimes with the punishment prescribed for a violation of the Act on the Control of Narcotics, Etc. with heavy punishment

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 Act on the Control of Narcotics, etc. [the ground for calculating the amount of additional collection: 800,000 won by philophone 2g retail ( = 2gx 400,000 won) + 3,000 won by mariju retail per mari = 803,00 won]

Judgment on the defendant and defense counsel's assertion under Article 334 (1) of the Criminal Procedure Act

1. Judgment on the rejection of prosecution

A. The assertion

The public prosecutor abused the right to institute a public prosecution by instituting the defendant as the fact of importing philopon for the purpose of causing substantial disadvantage to the defendant on the ground that the defendant does not confession the purchase of philopon. The facts charged in this case are not specified specifically as to the importation of philopon because it is impossible for the defendant to exercise his right to defense because it is not specified. Thus, the dismissal judgment should be pronounced.

B. Relevant legal principles

Under Articles 246 and 247 of the Criminal Procedure Act, a prosecutor may institute a public prosecution in cases where it is deemed reasonable to impose criminal sanctions on the elements of a crime, and the discretionary power is granted to refuse to institute a public prosecution by taking into account the matters as stipulated in Article 51 of the Criminal Act. However, in cases where it is deemed that a prosecutor voluntarily exercised his/her authority to institute a public prosecution and rendered a substantial disadvantage to the defendant, such exercise of authority to institute a public prosecution may be denied in light of abuse of authority to institute a public prosecution: Provided, That the exercise of authority to institute a public prosecution in this context is not sufficient solely for negligence in the course of performing his/her duties, and at least for dolusium or any other intent is required (see, e.g., Supreme Court Decisions 201Do3026, Sept

The specification of the facts charged is sufficient to specify the time, place, method, etc. to the extent that the facts constituting the cause of the prosecution can be distinguished from those of other facts charged, and even if the time, place, contents, etc. of the public offering were not explicitly indicated, it cannot be said that the facts charged are not specified solely for such reasons as long as it can be identified by other facts indicated (see, e.g., Supreme Court Decision 91Do3346, Jun. 22, 1993).

C. Determination

At the time of arrest of the defendant, G delivered iron lamps, with the direction of the seller of 'B' residing in the Philippines at the address of F, and the F received the above 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's '' with the '' '' '' '' with the F' '' '' '' '' ''' with the F' '' '' '' ''' ''' ''' with the ''' '' ''' ''' ''' ''' 's 's ''' 's ''' 's ''' 's 's ''' ''' ''' '' '' '' '' '' '' '' '' '' ''' '' ''' ' '''' ' ' ''''''' ' ' ''''' ''' ' ' '.

On the other hand, the facts charged in this case indicate that "the defendant conspireds with B around August 2015 to deliver phiphones from them to the Republic of Korea", and the defendant and "B" specified the time when the defendant conspireds with B around August 2015 to the extent that they can be distinguished from other facts charged. On August 2015, 2015, the fact charged in this case stated that "the defendant and "B" arrive at the Incheon Airport as an international air freight, and the defendant received the above mphones from G to Kwikset service as a purpose designated by the defendant, so it also specifies the contents of the defendant and "B".

Therefore, this part of the defendant and his defense counsel cannot be accepted, since the prosecution of this case was abused or the facts charged are not specified.

2. Judgment on the crime of purchasing philophones

A. The assertion

around May 2015, the Defendant, along with F, was a local woman of F, "I" as health assistance food (hereinafter referred to as 'Macar') when there was a f's home address at the address to be sampled in Korea, and the Defendant thought that the F was delivered to the address of F, but did not purchase the f's home address when the f's home address was removed and the f's home address was removed.

B. Determination

In full view of the following facts and circumstances admitted by each evidence of the judgment, the defendant can be recognized as purchasing philophones from "B" who is a philophone seller, so this part of the defendant and the defense counsel's assertion is not accepted.

1) On April 25, 2015 through May 7, 2015, the Defendant administered phiphones in the Philippines, along with F, to drink in a beverage. At the time, the Defendant exchanged phiphones with the manufacturer, and contacted with the mobile cameras around August 2015.

2) The “B” in which the Defendant sent a lamps to the Defendant is a person who sells a penphone in Korea through the website and mobile camera C. G was ordered by the “B” to receive the penphone which arrived at the Incheon Open Port on August 31, 2015, and thereafter collected a box containing four iron lamps on September 1, 2015 and then delivered a part of the barphone which was concealed in a vinyl and delivered to Ulsan and Busan, with a part of the barphone which was stored in a plastic package. One of the iron lamps which was sealed and delivered to Kwikset service to the “J” and the recipient’s name was sealed, and Kwikset service was sent to Seoul, which is the address of the F’s residence.

3) According to F’s above legal and investigation agency’s statement, on September 1, 2015, the Defendant: “L in Gangnam-gu Seoul, the Defendant came to get F from “L” office in Gangnam-gu, Seoul on September 1, 2015 to get F to get F to get him to get him to get him to get him; accordingly, F respondeded to the question of whether the recipient is J at the 1st floor of his residence and received him to get him to get him to get his house, and the Defendant was to get him to get him to get him to get him to get him to buy the phone, and it is difficult to view that the Defendant’s act of receiving health-related food delivery is a general behavior.

4) 'B'이 필로폰 배송에 사용한 철제램프는 맨 위 뚜껑을 돌려 뺀 후 본체를 뒤집어 드라이브로 뚜껑을 열고 실리콘 부분을 망치와 드라이브로 두드리며 뜯어내야 포장된 필로폰을 꺼낼 수 있는 특이한 구조인데, 피고인은 'B'으로부터 배송받은 철제램프 안에 내용물이 들어있는지 알기 위해 위 해체 방법과 같이 철제램프를 망치로 두드렸다. 피고인이 2015. 9. 2. F에게 "그게 실리콘 범벅이라 망치로 쳐서 깼더니 다 엉망진창이 됐어.", "어제 받은 거 해체 잘못해서 못 쓰게 됐어.", "망치로 쳤더니 다 깨지고 흩어 졌어."라고 보낸 H 메시지를 보더라도, 피고인이 철제램프에 은닉된 내용물을 꺼내는 방법을 인지하고서 철제램프를 망치로 쳤으며, 그 과정에서 가루 물질이 흩어져 쓸 수 없게 되었음을 알 수 있다. 이러한 점들에 비추어 보면 피고인이 받은 철제램프 역시 같은 날 국내에 도착한 다른 철제램프들과 마찬가지로 필로폰이 은닉된 것임을 알 수 있고, 피고인이 철제램프에 은닉되어 배송된 것이 건강보조식품이라고 믿었다는 것은 건전한 상식에 비추어 도무지 납득하기 어렵다.

5) While asserting that the Defendant anticipated that health assistance foods will be delivered, he brought to the house in which he would use the iron lamps which he did not order as food for food (the investigative record 1: 71 pages, 226 pages). The Defendant left the iron lamps to view it as being included in the iron lamps at a harsh time, and made a statement that it is not proper in the front and rear. In addition, the F made a statement to the effect that the health assistance food, which he had taken from the Defendant in the Philippines, was explained to the effect that it would come back to the door (13 pages of the record of the examination of F), but F made a statement to the effect that it was consistent in the investigative agency, and it was difficult for the Defendant to reverse the above statement by making it difficult for the defense counsel to believe that the Defendant’s message was collected merely because the Defendant did not explain it, and it was difficult for the Defendant to have made a statement to the effect that the Defendant’s message was collected, making it difficult for him to reverse the Defendant’s health assistance.

6) The Defendant expressed “to receive” H message on the ground that the delivered article cannot be scattered and used, and was promised to immediately communicate the seller with the seller and deliver it again. It is difficult to view that the “B” selling the penphone to an unspecified number of people is the attitude of the seller, and there is no reasonable reason to deliver the penphone to the Defendant, who did not purchase the penphone to an unspecified number of people, while taking various means to avoid danger.

7) 한편, 'B' 일당이 피고인에게 마약 혐의를 씌우고 이를 신고하여 감형 등 이익을 얻을 목적으로 필리핀에서 피고인을 속여서 알아낸 주소지로 필로폰을 보낸 것이라면, 굳이 허위로 수령인 이름을 기재하고, 복잡한 구조의 철제램프에 필로폰을 은닉할 이유가 없다. 또한, F은 검찰에서 피고인이 필리핀에서 만난 여자에게 자신의 집 주소를 적어준 사실은 잘 모르겠으며, 피고인이 그 여자에게 종이에 무엇을 적어주었거나 한 사실은 없다고 진술하여(수사기록 1권 249쪽), 필리핀에서 현지인에게 속아 F의 주소를 메모지에 적어줬다는 피고인의 진술과 배치되고, 피고인이 필리핀을 방문한 떄부터 4개월이나 지나서 필로폰을 수령하게 된 점도 더하여 보면, 피고인이 필리핀에서 F의 주소지를 알려준 것인지 의문스럽다.

8) On September 4, 2015, the Defendant: (a) knew on September 4, 2015, that he/she was arrested and investigated as a penphone with him/her; (b) left China with F on September 4, 2015; (c) returned from September 10, 2015; and (d) received text messages to have him/her forced investigation if he/she does not appear at the police station on September 11, 2015; (b) provided that he/she would appear before the police station until September 10, 2015; (c) on the same day, he/she did not appear before the police station on his/her own; (d) on September 14, 2015, he/she immediately sealed the bill of indictment with F on September 12, 2015, and was arrested with warrant of arrest after departure from the Republic of Korea and returned to China on September 25, 2018; and (d) recognized that he/she did not have any motive to purchase other facts charged.

As indicated below in the judgment of innocence, the violation of the Act on the Control of Narcotics, etc. (fence) by the import of phiphones charged in this case cannot be deemed proven to the extent that there is no reasonable doubt, but the defendant was arrested and detained due to the crime of purchase of phiphones, not the original phiphones revenue, and the defendant was found guilty of the violation of the Act on the Control of Narcotics, etc. (fence) by the import of phiphones as stated in the indictment of this case, and considering the fact that the investigation agency denied the purchase of phiphones itself from the investigation agency to the same content, the defendant was found guilty of the crime of violation of the Act on the Control of Narcotics, etc. (fence) by the purchase of phiphones as stated in the indictment of this case, even if he is found guilty of the crime of violation of the Act on the Control of Narcotics, etc. by minor phiphones.

3. Determination on the facts constituting the crime of smoking or taking in marijuana as indicated in the judgment

A. The assertion

The defendant drinked food while gathering marijuana into food during the four arms festival period. They only consist of marijuana ingredients in the urine, and they did not take marijuana intentionally or smoke.

B. Determination

In full view of the following facts and circumstances admitted by each evidence of the judgment, the Defendant may be found to have intentionally taken marijuana or smokeed. Accordingly, this part of the argument by the Defendant and the defense counsel is rejected.

1) From January 11, 2018, the Defendant was arrested with four arms from the Republic of Korea on February 14, 2018, and was repatriated to four arms police on February 25, 2018. On February 25, 2018, the Defendant discovered marijuana ingredients from the Defendant’s urine.

2) Although the Defendant became aware that he himself was assigned red times as a person who committed an act of escape abroad, on January 8, 2018, the Defendant entered Hong Kong to a four-one airport on January 8, 2018, and attempted to extend the visa by moving to the four-wheeled Ka on January 11, 2018. The spouse accompanied by his spouse continued the escape life, such as staying in a separate lodging place (see, e.g., Investigation Record 10 pages).

3) As above, it is difficult to understand that the Defendant, who was under the escape of the detention investigation to a foreign country, was eating food in Section Section 1 along with the festival period, and even knew that he/she was suffering from marijuana is difficult in light of the Defendant’s situation, age, experience, etc.

4) The Defendant had experience of administering phiphones in the Philippines in contact with narcotics.

1. The grounds for sentencing: Imprisonment with prison labor for one month to 15 years;

2. Scope of recommendations according to the sentencing criteria;

(a) Basic crimes: Crimes of violating the Act on the Control of Narcotics, etc.;

[Determination of Types] Reductions of Types 2 (mariju, flagb, item (c), etc.): Purchasing or receiving for medication, simple possession, etc.

[Scope of Recommendation] Imprisonment between 8 months to 1 year and 6 months (Mitigation)

(b) Concurrent crimes: Crimes of violating the Act on the Control of Narcotics, etc.;

[Determination of Types] 2 (Sariju, flad. and (e) of Medication) medication, simple possession, etc. (the scope of recommendations) shall be punished by imprisonment from 8 months to 1 year and 6 months (basic area). The scope of final sentence shall be the scope of sentence.

From 8th to 2 years of imprisonment (=the upper limit of basic crimes + the upper limit of concurrent crimes)

3. Crimes related to narcotics, etc., such as the instant crime, are not easy to detect due to their characteristics, and are highly harmful to individuals and society as well as society due to their hallcability and toxicity. Accordingly, the illegality and possibility of criticism are serious. The Defendant has consistently expressed that the investigation was carried out overseas for a long time, made a defense that makes it difficult to obtain, and made it difficult to obtain and return, and that is disadvantageous to the Defendant. However, this is the circumstances unfavorable to the Defendant. However, the Defendant merely purchased a small amount of penphone for the purpose of medication and possession, but did not actually administer a phiphone, which was purchased at the wind of breaking the iron light. The Defendant appears to have smoked or taken marijuana only during his stay in the Republic of Korea, and the Defendant appears not to have smoked or taken marijuana in other countries or in other countries. The Defendant did not have any history favorable to the Defendant, other than being punished by a fine or penal punishment, as a violation of the Military Service Act in 1988.

In addition, the defendant's age, character and conduct, family relations, motive and circumstances of the crime of this case, and various sentencing conditions shown in the records shall be determined as per the disposition.

The acquittal portion

1. Summary of the facts charged

On August 2015, the Defendant: (a) conspiredd with the nameless winners (one name B) in the Philippines to receive the penphones from them to the Republic of Korea; (b) concealed them in the iron lamps and sent 2g of the penphones to international air freight; (c) imported phiphones in collusion with G, a domestic delivery book, to the Gangnam-gu Seoul, the purport of which the Defendant was designated as Kwikset service, and (d) imported phiphones, in collusion with G, etc.

2. Determination

A. In a criminal trial, the burden of proof for the facts constituting an offense prosecuted is to be borne by the public prosecutor, and the conviction is to be based on the evidence of probative value that makes the judge feel true beyond a reasonable doubt. Therefore, if there is no such evidence, even if there is a suspicion of guilt against the defendant, it shall be determined with the benefit of the defendant.

B. Around May 2015, the Defendant stated that “B” or “B” or “B” associated with the Defendant was administered and exchanged Calone, and that the Defendant sent samples to the Defendant’s domestic address, and that the Defendant was informed of F’s domestic address. Around August 2015, the Defendant contacted the Defendant with the Defendant who exchanged Caloneone on the F’s domestic address, and received △△△△ on September 1, 2015. The Defendant left the Republic of Korea on September 12, 2015 and went away from the Republic of Korea, and delayed the Defendant’s living abroad, there is also doubt that “B” and “B” did not coincide with the Defendant’s intention to receive the penphone delivered from the Republic of Korea to the Republic of Korea.

C. However, in light of the following facts and circumstances acknowledged by the evidence duly adopted and investigated by this court, such circumstance alone cannot be deemed as having been proven beyond reasonable doubt that the Defendant imported phiphones in collusion with “B,” etc., and there is no other evidence to acknowledge this differently.

1) The Defendant’s administration, “B”, and “B” and “AD” were between April 25, 2015 and May 7, 2015. The Defendant only visited China and Hong Kong for about four months from the date of returning from the Philippines to the end of August 2015, and there is no evidence to deem that the Defendant met “B” abroad or continued to contact with “B” during the said period. 2) The Defendant merely was sent to the Republic of Korea by G and did not directly intervene in the process of importing the instant phiphone, and it appears that the Defendant was bound to be aware that the phiphone was distributed in the Republic of Korea at the time of receiving the phi, and there is no other circumstance to deem that the Defendant was imported from the part of the Defendant’s perspective.

3) The instant act of importing the instant phiphones does not seem to have a reason to invite the Defendant to import the phiphones, while “B” and “B” have already secured the domestic delivery of the phiphones with the intention of selling the phiphones on behalf of M 1, which intended to receive the phiphones at the initial Incheon Airport. The Defendant received the phiphones on behalf of G, which intended to receive the phiphones, and directly participated in the domestic delivery of the phiphones.

4) The Defendant, like other simple buyers who purchased phiphones from “B”, resided in the Republic of Korea and traded phiphones through “B” through “B” and received phiphones delivered by “B”. There is no circumstance to deem that “B” had recruited the importation of phiphones from among many domestic buyers, or shared the fact that phiphones are imported from abroad.

3. Conclusion

Thus, among the facts charged in this case, the violation of the Act on the Control of Narcotics, etc. (fluence) due to the philophone import constitutes a case where there is no proof of crime and thus should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act, but as long as the court found the defendant guilty of the violation of the Act on the Control of Narcotics, etc. (flu

Judges

The presiding judge, the Gimology judge

Judges Kim Gin-young

Judges, Senior Jins

Note tin

1) M is convicted of a criminal fact that he/she imported phiphones in collusion with B on August 2015 (the first instance court: the Seoul Central District Court)

Seoul High Court Decision 2015No3607 decided July 27, 2016; Supreme Court Decision 2015Da3607 decided December 11, 2015; Supreme Court Decision 2015Da3607 decided July 27, 2016; Supreme Court Decision 201Da3607 decided October 201

13. Supreme Court Decision 2016Do12505 Decided January 1, 201

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