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(영문) 서울고등법원 2016.08.11 2016노759
특정범죄가중처벌등에관한법률위반(도주차량)등
Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than four years and six months.

The seizure of articles 1 to 8 shall respectively.

Reasons

1. Summary of grounds for appeal;

A. On March 2, 2015, the lower court acquitted the Defendant of violation of the Act on the Control of Narcotics, Etc. (fence) around March 2, 2015, despite the credibility in the statement of BA that he/she received 20g camblopon (hereinafter “copon”) from the Defendant on the part of the lower judgment.

B. The defendant's wrongful assertion of sentencing (as to the guilty part of the judgment of the court below) that the court below sentenced (as to imprisonment with prison labor for six years, confiscation and collection) is too unreasonable.

2. Determination

A. (1) Prior to the prosecutor’s judgment on the prosecutor’s assertion of mistake of facts, prior to the prosecutor’s appeal, the prosecutor examined this part of the facts charged at the second trial date of the trial of the first instance court, and the prosecutor sold BL through BA in a way that “The Defendant sold BL in front of the building located in the Nam-gu Incheon Metropolitan City BJ on March 2, 2015, at around 01:0-01:30,000 to 20,000,000 won in cash from BA upon the request of BL in advance, and upon the request of BL to request for clopon, sold the copon to BL in advance.

In the judgment of the court below, the portion of acquittal in the judgment of the court below cannot be maintained any more, as it applied for permission to amend the Bill of Indictment.

However, the prosecutor’s assertion of mistake of the facts is still subject to the judgment of this court, and we will examine the above facts below, since it is the same as that of the previous facts charged that the defendant saw about 20g philopon to BA despite the above reasons for reversal of authority.

(2) The court below is not admissible as a copy of each police interrogation protocol against BA and BL, and it is difficult to believe the witness BA’s legal statement, the prosecutor’s office against BA, and the police interrogation protocol.

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