(영문) 서울중앙지방법원 2018.7.26. 선고 2018고합517 판결

However, the execution of each of the above punishment against the Defendants is suspended for three years from the date this judgment became final and conclusive. They shall be subject to probation for two years each, and order community service for 200 hours each.

Nos. 1 through 8 shall be forfeited from Defendant B, and Nos. 15 through 18 shall be forfeited from Defendant A, among the items listed in the attached confiscation list.

Joint collection of KRW 640,00 from the Defendants, KRW 750,00 from the Defendant A, and KRW 89,000 from the Defendant B.

Reasons

Criminal facts

Even if the Defendants were not the narcotics handler, they handled the Metropoper (one-name clopon; hereinafter referred to as the “philopon”), MDMA (one-name coper copon; hereinafter referred to as the “expoper coper”), and Kenya as follows.

1. The Defendants’ co-principal

(a) X-type medication;

At around 23:40 on July 10, 2016, the Defendants: (a) administered “H hotel in Thailand” one half of the fact of X masters in the form of a divided map, each half of each body (1/2) together with water; and (b) jointly administered X masters by not later than seven times until June 11, 2017, as shown in attached Table 1.

At around 00:00 on July 11, 2016, the Defendants jointly administered Kenyas not later than five times until the 17th day of the same month, as shown in the attached Table 2, in addition to the cases where the Defendants, in a 'I club' in Thailand, a quantity of Kenyas that cannot be known in a toilet as soon as possible, and administered in a manner that inhales their own croccos.

2. Defendant A

(a) Smoking marijuana;

(1) Around 05:00 on October 13, 2015, the Defendant smoked in a way that he or she gets in a pipe a smoke from a quantity not known at a hotel in which the trade name in Thailand is unknown (ordinary once, approximately 0.5g).

(2) Around 04:00 on February 2, 2017, the Defendant smoked approximately 0.5g of marijuana at the residence of Gangnam-gu Seoul, Gangnam-gu, 101 Dong 801, and around 0.5g as described in the foregoing (1).

(b) The purchase of X-mail;

On June 30, 2016, at least 14:17, the Defendant: (a) contacted K with K at a place where it is unknown in Seoul; (b) agreed to purchase 10,000 won for the purchase; and (c) transferred 1,50,000 won for the purchase to the account used by K; and (d) decided to depart from Korea on July 2, 201 of the same year to purchase 50,000 won from K at “L hotel”, and purchased 7,50,000 won for the remaining 5,000 won by means of refund.

At around 17:00 on July 2, 2016, the Defendant administered the “L hotel” as stated in the above paragraph (b) in a way that the Defendant, along with M, opens the course of study at one half of the X-si, and ambling them together with water.

(d) Import of X-mail or marijuana;

On July 18, 2016, the Defendant: (a) concealed X-si 2 mobile phone cases in the airport located in Thailand; (b) concealed the marith in the open air, respectively; and (c) imported the marithic marithic marithic marithic marithic marithic marithic marithic marithic marithic marithic in the Incheon Jung-gu Incheon, Jung-gu, Incheon; and

(e) Possession of marijuana;

On June 29, 2017, the Defendant, at around 18:20, kept approximately 1.8gg of the hemp imported, as described in the foregoing paragraph (d), in a strike, for the purpose of smoking, and possessed them.

3. Defendant B

(a) Smoking marijuana;

(1) On June 1, 2016, the Defendant, together with K, smoked in the way of inserting the smoke emitted by inserting it into the pipe in the dwelling of Gangnam-gu Seoul J, 101 Dong 802, and inserting it in the pipe.

(2) On July 10, 2016, the Defendant smoked once in the same manner as the foregoing paragraph (1) in a quantity not known in the “H hotel” as stated in the above 1. A on July 10, 2016.

(b) Import of X posters, phiphonephones, Kenyas, and marijuana;

On July 18, 2016, the Defendant imported, in the airport located in Thailand in Thailand, 16 ophones, 0.39 g of opphonephones, 0.39 g of lopphones, lophotob of an unknown quantity, and marib of an unidentified quantity, and concealed them in a package for travel, and possessed them by pretending their baggage, and after having arrived at the port of the Incheon Jung-gu Incheon Incheon Port, Jung-gu by using air flights, and then passed through the place of entry inspection as they are.

On September 28, 2016, the Defendant delivered 1.39g and 0.75g (one minute) from among the Kenyas imported as referred to in the above paragraph (b) to the Defendant at his residence described in the above paragraph (a) (1), and received them respectively.

(d) X-type medication;

(1) On January 201, 2017, the Defendant, at the early 00:0, administered the first half of the class (1/2) with the first half of the class (i.e., the first half of the class) with the X-gu with the first half of the class (i.e., the first half) with the water.

(2) The Defendant, at around 03:00 on the same day as above (1), administered Q clubs in Yongsan-gu Seoul Metropolitan Government P, and administered the remainder (1/2) remaining half (1/2) together with shampoo and shampoo.

(e) Possession of X-gu, Kenya, phiphonephones, and marijuana;

On June 29, 2017, at around 18:00, the Defendant kept approximately 0.83g of hemp for the purpose of smoking, among the narcotics imported as described in the above paragraph (a)(1), 14 hours in X-si, 1.97g in the Kenya, approximately 0.39g in the philophone, and 0.83g in the internal cremation cremation unit for the purpose of smoking.

Summary of Evidence

1. Defendants’ respective legal statements

1. Each prosecutor's interrogation protocol against the Defendants

1. Each police suspect interrogation protocol against 0 (Evidence No. 59,60);

1. Each police statement to K (Evidence Nos. 1, 65);

1. Each protocol of seizure (the sequence 8,32 of the evidence list);

1. The photograph of seized articles (A) and photograph of seized articles (B);

1. Each narcotics appraisal statement (the No. 27,30,49 of the evidence list);

Application of Statutes

1. Article applicable to criminal facts;

A. Defendant A

○ Articles 58(1)5, 3 subparag. 7 (Import of Cannabis) of the Narcotics Control Act (Article 58(1)6, 4(1)1, and 2 subparag. 3(b) (Article 2 subparag. 3(b) of the Act on the Control of Narcotics, Etc.)

Articles 60(1)2, 4(1)1, and 2 subparag. 3(b) of the Narcotics Control Act (Article 30 of the Criminal Act shall be added with respect to the purchase of an X-guer, the purchase of an X-guer, the administration of an X-guer, the administration of the Kenya, the administration of the Kenya, and the administration of the Guide and Kenya)

Article 61(1)4 (a) and subparagraph 10 (a) of Article 3 of the Act on the Control of Narcotics, Etc. (the point of smoking marijuana)

○ Article 61(1)4 (b) and (a), Article 3 subparag. 10 (b) and (a) of the Narcotics Control Act (the point of possession of marijuana for smoking purpose)

B. Article 58(1)5 and Article 3 subparag. 7 of the Act on the Control of Narcotics, Etc. (the point of import of marijuana)

○ Articles 58(1)6, 4(1)1, and 2 subparag. 3(b) of the Narcotics Control Act (the occupation of the import of the X-guer or Handphone operator)

Articles 60(1)2, 4(1)1, and 2 subparag. 3(b) of the Act on the Control of Narcotics, Etc. (Article 30 of the Criminal Act shall be added to the cases of the provision of X-the-counter medication, the Kenya medication, the provision and receipt of Kenya residents, the provision of X-the-spot, the provision of Kenya, the holding of X-si, Kenya, and Malaysia; and on July 10, 2016 of the Act on the Control of Narcotics, Etc.)

Articles 61(1)4(a) and 3 subparag. 10(a) of the Act on the Control of Narcotics, Etc., and Article 30 of the Criminal Act

○ Article 61(1)4 (b) and (a), Article 3 subparag. 10 (b) and (a) of the Narcotics Control Act (the point of possession of marijuana for smoking purpose)

○ Articles 61(1)6 and 4(1)2 of the Narcotics Control Act (the giving and receiving of marijuana)

1. Commercial competition;

(a) Defendant A: Articles 40 and 50 of the Criminal Act (the punishment imposed on the violation of the Act on the Control of Narcotics, etc. (fence) and the violation of the Act on the Control of Narcotics, etc. (malition) due to the importation of an X masters, and the punishment imposed on the violation of the Act on the Control of Narcotics, etc

(b) Defendant B: Articles 40 and 50 of the Criminal Act ( ① the violation of the Act on the Control of Narcotics, etc. (fence) and the violation of the Act on the Control of Narcotics, etc. (fence) due to the import of X-type and oponphonephone, and the violation of the Act on the Control of Narcotics, etc. (fence) due to the import of marijuana, ② the violation of the Act on the Control of Narcotics, etc. (fence) with heavy quality of the crime, ② the violation of the Act on the Control of Narcotics, etc. due to the Kenya-type waterways, and the violation of the Act on the Control of Narcotics, etc. (fence) due to the use of marijuana, ③ the violation of the Act on the Control of Narcotics, etc. due to the possession of a heavy amount of punishment, ③ the violation of the Act on the Control of Narcotics, etc. due to the possession of a opon phone and the punishment provided for the violation of the Act on the Control of Narcotics, etc.

1. Selection of punishment;

A. Defendant A: Selection of a limited term sentence and imprisonment with prison labor for the remaining crimes on the violation of the Act on the Control of Narcotics, etc. (flavoring) due to the import of X-Pers

B. Defendant B: Selection of a limited term of imprisonment for the crime of violation of the Act on the Control of Narcotics, Etc. (fence) due to the import of X-Leropic phiphones, and selection of imprisonment for the remaining crimes

1. Aggravation for concurrent crimes;

(a) Defendant A: Aggravation of concurrent crimes with punishment prescribed in the Act on the Control of Narcotics, etc. (compacting) due to the importation of X-Per with the largest penalty provided for in the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act);

(b) Defendant B: Aggravation of concurrent crimes with punishment stipulated in the Act on the Control of Narcotics, etc. (the crime of violation of the Act on the Control of Narcotics, etc.) due to the importation of X-Pers, Handphones, and Kenyas with the largest penalty provided for in the former part of Article 37, Article 38(1)

1. Discretionary mitigation;

Defendants: Articles 53 and 55(1)3 of the Criminal Act (see, e.g., Supreme Court Decision 2001Du1448, Jan. 1, 20

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

1. Probation and community service order;

The Defendants’ confiscation under Article 62-21 of the Criminal Act

The main sentence of Article 67 of the Act on the Control of Narcotics, Etc.

[A prosecutor is seeking the confiscation of a pipe (No. 9) made from a hoys used to smoke the hemp plant, but it is difficult to readily conclude that the above articles were offered for the pertinent crime even after examining all the evidence submitted by the prosecutor. Thus, such articles shall not be confiscated.]

1. Additional collection:

Defendants: proviso to Article 67 of the Narcotics Control Act (Reasons for Calculation of Additional Charges)

A. Joint collection of the Defendants: 640,000 won

1) The additional collection is made jointly by the Defendants on the 0,000 won of the crime No. 1’s (=the price of cancer trade at 8 X-si)

2) The equivalent value shall not be collected as a result of lack of evidence to estimate the price of cancer transactions by the Kenya in Section 1(b) of the facts constituting the crime.

B. The additional collection of Defendant A: 750,000 won (=6,000 won + 750,000 won)

1) Criminal facts No. 2-A Smoking: 6,00 won (i.e., price for 2/2 of smoking marijuana) (i.e., price for 2/100 of smoking marijuana)

3) Since the part concerning the medication of an X-ray under Article 2(c) of the Criminal facts was administered as provided in Article 2(b) of the Act, the X-ray was used.

No collection shall be made in duplicate.

4) Since the crime No. 2 (D) X-si and the import X-si of marijuana in the crime No. 2 was used for administration as shown in the No. 1-A (Attached Table 1-6) and was already collected under the above A-A-1, it is not concurrently collected, and it is not additionally collected, as the imported quantity cannot be known and thus, it is not additionally collected.

5) Separate collection is not required for the following facts: (a) 89,00 won (=6,00 won + 80,000 won + 3,000 won) criminal facts 3(a) of the crime No. 3(2) of the 2- E-mail : 80,000 won (i.e., price for cancer trade twice the smoking of marijuana) and 3-B 2 of the 3-V car, penphone, clop, clop, Kenya, and marijuana import: 80,00 won (i.e., one of 16 X 16,000, 14 out of the 16, X 16,000, and 16,000 won among the remaining 2,000 won are seized and confiscated, and thus, the additional collection is not to be collected separately from the list of criminal facts 1(a) of the 1-7,000 won and thus, the additional collection is not to be made.

3) Criminal facts No. 3 (C) Kenya, and delivery and receipt of marijuana: 3,00 won (i.e., price for cancer trade once for smoking marijuana, and Kenya shall not additionally collect the value of cancer trade because there is a lack of evidence to calculate the price for cancer trade)

4) Since the part on the administration of an X-ray under Article 3 (D) of the criminal facts was already collected in addition to the above C. 2, it shall not be additionally collected in duplicate.

5) The separate collection is not required as it was consumed or confiscated for appraisal due to the possession and seizure of EXE, Kenya, Kenya, phiphones, marijuana in criminal facts No. 3.

Reasons for sentencing

1. The scope of punishment by law;

(a) Defendant A: Imprisonment with prison labor for not less than two years and six months, but not more than 22 years and six months;

(b) Defendant B: Imprisonment with prison labor for not less than two years and six months, but not more than 22 years and six months;

2. Scope of recommending sentences according to the application of the sentencing criteria;

A. Defendant A

1) Crimes of violation of the Act on the Control of Narcotics, etc. (Psychotropic Crimes) (Basic Crimes) due to the importation of X masters

[Determination of Types 3] Importation, Export, etc. of Narcotics (Narcotic drugs, native items (a) and (b), etc.): Where there is a reason to take special account of the motive for committing a crime or motive for committing a crime

[Recommendation and Scope of Recommendation] Reduction Area, Imprisonment with prison labor for not less than two years and six months but not more than five years;

2) Types 3(b) and (c) of the Act on the Control of Narcotics, Etc. (compact No. 1) due to X-si and Kenya medication (compact No. 1) (f) of the Act on the Control of Narcotics, etc.).

【Special Convicted Person】

[Recommendation and Scope of Recommendation] Basic Field, Imprisonment with labor for not less than 10 months, but not more than 2 years;

3) Crimes of violation of the Act on the Control of Narcotics, etc. (compact No. 2) by the purchase of X-mail

[Determination of Types] Type 2, such as assistance in the trade of narcotics (mariju, item (b) and (c), etc.)

[Special Escopics] Reduction element: Purchasing or receiving for simple possession of medication, etc.

[Recommendation and Scope of Recommendation] Reduction Area, Imprisonment with prison labor for not less than eight months but not more than one year and six months;

4) Scope of recommending punishment according to the standards for handling multiple crimes: Imprisonment with prison labor for not less than two years and not less than six years and not more than six months (in accordance with the standards for handling multiple crimes, five years of imprisonment with prison labor which is the upper limit of the highest range of sentence among concurrent crimes according to the standards for handling multiple crimes, one year of imprisonment with prison labor which is 1/2 of the upper limit of the highest range of sentence among concurrent crimes and six months of imprisonment with prison labor which is 1/3 of the upper limit

B. Defendant B

1) The crime of violation of the Act on the Control of Narcotics, etc. (Basic Crimes) (hereinafter referred to as the “Basic Crimes”), which is caused by the importation of X-gu phiphones.

[Determination of Punishment] Manufacturing, etc. of Import and Export of Narcotics (Narcotic drugs, native items (a) and (b), etc.): Where there is a reason to take special account of the participation in a crime or the motive for crime

[Recommendation and Scope of Recommendation] Reduction Area, Imprisonment with prison labor for not less than two years and six months but not more than five years;

2) Violation of the Act on the Control of Narcotics, etc. (compact No. 1) by the use of X-gu, Kenya-gu, Kenya-gu, X-gu and Kenya-guopon possession (compact No. 1)

[Determination of Types 3 [Determination of Types] Simple possession, etc. of Medications of Narcotics (flag (b) and (c)]

【Special Convicted Person】

[Recommendation and Scope of Recommendation] Basic Field, Imprisonment with labor for not less than 10 months, but not more than 2 years;

3) Crimes of violation of the Act on the Control of Narcotics, etc. (the second concurrent crimes) by smoking marijuana.

[Determination of Kind] Medication, Simple Possession, etc. of Narcotics No. 2 (marijuth, flath, d. and (e), etc.) / None of the following persons:

[Recommendation and Scope of Recommendation] Basic Field, Imprisonment for not less than eight months, but not more than one year and six months;

3. Determination of sentence;

(a) Defendant A: Three years of a suspended sentence of imprisonment with prison labor for two years and six months;

(b) Defendant B: Three years of a suspended sentence of imprisonment with prison labor for two years and six months;

In particular, the importation of narcotics is unlikely to cause the spread of narcotics and additional crimes resulting from the spread of narcotics and the occurrence of additional crimes. Therefore, the defendants need to be subject to punishment corresponding to their responsibilities.

The volume of the narcotics imported by the Defendants is not large, and it appears that they were imported for the purpose of medication and smoking individually, not for circulation in the market. The Defendants have no criminal record of the same kind, reflect their criminal conduct in depth, and express their intent to actively take part in the treatment of narcotics by themselves. These circumstances are favorable to the Defendants.

Other factors of sentencing, such as the defendant's age, character and conduct, environment, motive, means and result of the crime, and circumstances after the crime, shall be determined as ordered in comprehensive consideration.