[1] Whether a crime of violation of Articles 5(1) and 61(1)7 of the former Act on the Control of Narcotics, Etc. is an intended crime (affirmative), and the standard for determining whether there exists "purposes other than business"

[2] Whether a person handling narcotics, etc.'s act of administering narcotics, etc. under the ice of medical treatment, etc. beyond the generally necessary scope for the purpose of medical treatment constitutes a case where a person handling narcotics, etc. administers narcotics, etc. for the purpose other than

[1] Articles 5(1) and 61(1)7 of the former Act on the Control of Narcotics, Etc. (amended by Act No. 11690, Mar. 23, 2013) prohibit and punish such acts under the premise that “for purposes other than business purposes,” other than intentional acts, stipulate “purposes other than business purposes,” as an element for the establishment of crimes. The existence of such purposes should be determined reasonably in light of social norms, taking into account that the legislative purpose of the said provision is to prevent potential misuse or abuse of, and contribute to the improvement of public health, by ensuring appropriate handling and management of, narcotics or psychotropic drugs.

[2] The administration of narcotics or psychotropic drugs (hereinafter “narcoticss, etc.”) within the scope necessary for the treatment of diseases or for other medical purposes based on medical judgment by a doctor who is a person handling narcotics, etc. is prohibited. However, the administration of narcotics, etc. under the circumstance of medical treatment, etc. beyond the scope ordinarily necessary for the treatment of diseases or for other medical purposes constitutes a case where narcotics, etc. are administered for the purpose other than business purposes.

[1] Articles 1, 4(1), 5(1), and 61(1)7 of the former Narcotics Control Act (Amended by Act No. 11690, Mar. 23, 2013) / [2] Articles 4(1), 5(1), and 61(1)7 of the former Narcotics Control Act (Amended by Act No. 11690, Mar. 23, 2013)

[2] Supreme Court Decision 2011Do10797 Decided April 26, 2013 (Gong2013Sang, 996)

Defendant 1 and one other

Defendants

Law Firm LLC, Attorneys Choi Han-soo et al., Counsel for the defendant-appellant-appellant

Seoul Central District Court Decision 2013No4230 Decided June 26, 2014

All appeals are dismissed.

The grounds of appeal are examined.

1. As to Defendant 1’s ground of appeal

A. Article 4(1)1 of the former Act on the Control of Narcotics (amended by Act No. 11690, Mar. 23, 2013; hereinafter “Narcotic Control Act”) provides that a person who handles narcotics or psychotropic substances (hereinafter “narcotics, etc.”) shall not possess, possess, transport, control, import, export, manufacture, prepare, administer, administer, deliver, sell, intermediate the transaction of, or intermediate the transaction of narcotics, etc., and Article 5(1)1 of the same Act provides that a person who handles narcotics, etc. shall not engage in any act stipulated in any of the subparagraphs of Article 4(1) for purposes other than his/her business, and Article 61(1)7 of the same Act provides that a person who handles psychotropic substances, in violation of Article 5(1) shall be punished.

As above, prohibiting and punishing acts prescribed under Articles 5(1) and 61(1)7 of the Narcotics Control Act, on the premise that “for purposes other than business purposes,” is “for purposes other than business purposes,” should be determined reasonably in light of social norms, with the mind that the legislative purpose of the above provision is to prevent harm to public health caused by misuse or abuse by properly handling and managing narcotics, etc. and thereby contribute to the improvement of public health.

Meanwhile, the administration of narcotics, etc. within the scope necessary for the treatment of diseases or for other medical purposes based on a medical judgment by a physician who is a person handling narcotics, etc. is prohibited (see Supreme Court Decision 2011Do10797, Apr. 26, 2013). However, it is reasonable to view that the administration of narcotics, etc. by undermining medical treatment and other medical purposes beyond the scope ordinarily necessary for the treatment of diseases or for other medical purposes constitutes the administration of narcotics, etc. for the purpose other than business purposes.

In addition, criminal facts should be proved to the extent that there is no reasonable doubt (Article 307(2) of the Criminal Procedure Act). However, the preparation of evidence and its probative value based on the premise of fact-finding belong to the free judgment of the fact-finding court (Article 308 of the Criminal Procedure Act).

B. On the grounds indicated in its reasoning, the first instance court found Defendant 1 guilty of the violation of the Narcotics Control Act that Defendant 1 conspired with co-defendant 3 and Nonindicted 1, Nonindicted 2, Nonindicted 3, Nonindicted 4, and Nonindicted 5, who are propool dependent on propool, committed a propool medication in parallel with a simple cosmetic surgery, on the grounds as indicated in the judgment of the court of first instance, constitutes a propool medication, which is a propool medication under the process of the above treatment, and Defendant 1 was aware of, or was fully aware of, such circumstances. In so determining, Defendant 1 was guilty of the violation of the Narcotics Control Act that Defendant 1 habitually administered propool for purposes other than medical treatment in collusion with co-defendant 3 of the first instance court.

In addition, the lower court, on the grounds the grounds indicated in its reasoning, determined that (1) in order to punish a crime in violation of Article 5(1) of the Narcotics Control Act, “for purposes other than medical treatment” and “a recognition and acceptance of it is necessary,” and (2) further, Defendant 1 accepted the request of Co-Defendant 3, etc. of the first instance trial and performed a simple cosmetic surgery as stated in the judgment of the first instance court while conducting a simple cosmetic surgery, determined that the medication of propool as stated in the judgment of the first instance court constitutes a medication for purposes other than medical treatment, and subsequently, maintained the first instance judgment without accepting Defendant 1’s allegation of grounds for appeal as to

C. The ground of appeal disputing the above fact-finding by the first instance court and the lower court is merely an error of the determination on the selection and probative value of evidence belonging to the free judgment of the fact-finding court, and thus, cannot be accepted.

In addition, examining the reasoning of the first instance judgment and the reasoning of the lower judgment in light of the evidence duly admitted, the part of the lower court’s explanation that the crime under Article 61(1)7 of the Narcotics Control Act was not an intended crime is not in violation of Article 5(1) of the Act, and part of its explanation is not appropriate or insufficient. However, the lower court determined that Defendant 1’s administration of propool to Co-Defendant 3, etc. was a medication for the purpose other than medical treatment, taking into account the various circumstances as indicated in its reasoning, on the premise that the recognition and acceptance of the “purpose other than medical treatment” and its recognition is necessary to punish the crime above, and thus, it can be deemed that this constitutes a medication for the purpose other than medical

Therefore, contrary to the allegations in the grounds of appeal, the judgment of the first instance court and the lower court did not err by misapprehending the legal doctrine regarding the interpretation and standard of determination of “purpose other than business” under Article 5(1) of the Narcotics Control Act, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by exceeding

2. As to Defendant 2’s ground of appeal

A. On the grounds indicated in its reasoning, the lower court determined that the credibility of each statement made by Defendant 2, Co-Defendant 4, Co-Defendant 5, Nonindicted 6, and Nonindicted 7 at the prosecution is recognized, and (2) based on the fact that Defendant 2, a doctor, was administering propool in collusion with Defendant 4 and Co-Defendant 4 of the first instance trial, Defendant 2, as indicated in the judgment, in collusion with Defendant 2’s “non-medical purpose,” and that propool was constantly administered in collusion with Defendant 2’s allegation in the grounds for appeal as to the mistake of facts or misapprehension of the legal doctrine in the first instance trial, based on the following facts: (a) Defendant 2, a doctor, was aware of the propool dependence on Co-Defendant 4, Defendant 5, Nonindicted 6, and Nonindicted 7; and (b) Defendant 2, a doctor, was not accepted.

B. The allegation in the grounds of appeal disputing such determination or fact-finding by the lower court is nothing more than an error of the lower court’s determination on the selection and probative value of evidence, which substantially belongs to the free judgment of the lower court. In addition, even when examining the reasoning of the lower judgment in light of the aforementioned legal principles and the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the principle of trial-oriented and the principle of direct examination, or by

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Ki-taik (Presiding Justice)