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(영문) 서울중앙지방법원 2016.04.21 2015노4891
마약류관리에관한법률위반(향정)
Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for six months.

300,000 won shall be additionally collected from the defendant.

(e).

Reasons

1. Summary of grounds for appeal;

A. (1) On September 2013, 2013, the Defendant did not have administered philophones together with G at the above time.

(2) On the following day, the Defendant did not have administered philophones together with H on the above date and time.

(3) On October 2013, the Defendant did not have administered philophones together with G at the same time.

(4) On October 10, 2013, the Defendant did not have been accommodated with H in the hotel “J” or administered phiphones with H at the same time.

B. The sentence of the lower court’s improper sentencing (one hundred months of imprisonment, etc.) is too unreasonable.

2. Determination

A. According to the evidence duly adopted and examined by the lower court, the Defendant was sentenced to imprisonment on June 29, 201 with labor for a violation of the Narcotics Control Act at the Busan District Court on July 2, 201, and completed the enforcement of the sentence on July 2, 201, and committed each of the instant crimes within three years thereafter.

Therefore, the lower court erred by omitting the punishment within the scope of punishment aggravated for repeated crime under Article 35 of the Criminal Act with regard to each of the crimes of this case, and thus, the lower court could not escape from reversal.

However, the Defendant’s assertion of mistake as to the facts is still subject to deliberation, despite the above reasons for reversal, and this is to be examined below.

B. (1) On September 2013, 201, on the lower order of 23:00 Handphones, and the following day, H and G are relatively factual and concrete in light of the following: (a) the introduction of the Defendant to visit the Defendant’s store on the date indicated in the facts charged; (b) the situation in which the G first entered the room; and (c) G were able to leave the Defendant’s store first after a few hours; and (d) the situation at the time of the conversation or the phiphone medication divided by the Defendant at the time.

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