2019No453, 2054 (Consolidation)

(b) Injury by assault;

(c) Violence;

1. (a) A;

2. A. (c) B

Defendants

West Dong-dong, Gyeong-dong (Public Prosecution), Kim Jong-Gyeong (Public Trial)

Attorney C (Korean National Assembly for Defendant A)

Attorney D (Korean National Assembly for Defendant B)

1. District Court Decision 2018Dadan3705 Decided February 8, 2019

2. Suwon District Court Decision 2018 High Court Decision 2018 High Court Order 2828, 2019 High Court Order 2019 High Court Order;

306 (Joints), 2019 Highest 365 (Joints), 2019 Highest 1280 (Joints), 2019 Highest 2019 Highest 2019 Highest 2019 Highest

Article 2195 (Judgment of Consolidation)

December 12, 2019

1. All of the judgment below of the defendant A is reversed.

A defendant shall be punished by imprisonment for a term of one year and eight months.

One paper to be buried in seized white paper (No. 3 of 2018's District Prosecutors' Office No. 1823 of 2018) and five divers (No. 4 of 2018) shall be confiscated from the defendant.

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

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

2. Defendant B’s guilty portion of the judgment of the court below of the second instance is reversed.

The defendant shall be innocent.

○ Defendant A

1. Summary of grounds for appeal;

Each court below's punishment (the first instance court's punishment: imprisonment of 1 year and 2 months, confiscation, additional collection, and imprisonment of 2 years: 1 year) is too unreasonable.

2. Ex officio determination

Prior to the judgment on the grounds for appeal by the defendant, the appeal case against the judgment of the court below was consolidated. Each of the offenses in the judgment of the court below against the defendant is a concurrent offense relationship under the former part of Article 37 of the Criminal Act, and shall be sentenced to a single sentence within the scope of the term of punishment increased by concurrent offenses in accordance with Article 38(1) of the Criminal Act. Thus, all of the judgment of the court below shall be reversed.

3. Conclusion

The judgment of the court below is reversed in accordance with Article 364 (2) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing, on the grounds of the above ex officio reversal, and the judgment below is reversed in accordance with the pleading and the following new decision are

[Judgment as to Defendant A]

Criminal facts and summary of evidence

The summary of the facts constituting an offense and the evidence recognized by this court is the same as the corresponding column of each judgment of the court below, and thus, it is quoted in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Article applicable to criminal facts;

Articles 60(1)2, 4(1)1, and 2 subparag. 3(b) (the point of sale) of the Narcotics Control Act; Articles 262, 260(1) and 257(1)2 of the Criminal Act; 1. Selection of a sentence

Each Imprisonment Selection

1. Aggravation for concurrent crimes;

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act

1. Confiscation;

The main sentence of Article 67 of the Narcotics Control Act

1. Additional collection:

The proviso to Article 67 of the Narcotics Control Act (100,000 won related to the administration of phiphones + 200,000 won related to the sale of phiphones, and 300,000 won in total)

1. Order of provisional payment;

The grounds for sentencing under Article 334(1) of the Criminal Procedure Act are as follows, comprehensively taking into account the following circumstances, the Defendant’s age, character and conduct, environment, background of the crime, circumstances after the crime, criminal records, and other factors revealed in the proceedings of this case, and the sentencing factors revealed in the proceedings of this case shall be determined as ordered.

○ Unfavorable Circumstances: The Defendant was sentenced to two years of the suspension of the execution of one year of imprisonment by means of the purchase, medication, etc. of phiphones in 2016, and committed a crime of selling the instant phiphones during the suspension period; in particular, the Defendant committed a crime of selling the phiphones to another person; and the Defendant used assaulting the victim B to commit a crime related to phiphones in this case and used the victim B to commit a serious injury.

○ favorable circumstances: The confession of each of the crimes in this case; the victim B does not want the punishment of the defendant; the minor is raising a female; cooperation was made in arresting the drug offender; the victim's criminal records related to the penphone are only once, and there are no other criminal records.

○ Defendant B

1. Facts charged;

On June 22, 2017, at the Seoul Central District Court, the Defendant was sentenced to one year of imprisonment for a violation of the Act on the Control of Narcotics, Etc. (fence) and completed the execution of the said sentence on December 20 of the same year in Seoul Eastern Detention Center. The judgment became final and conclusive on February 8, 2018.

(a) Handphone medication - 2018 Highest 2821

The defendant is not a person handling narcotics, and he cannot handle psychotropic drugs.

The Defendant, from March 12, 2018 to April 13, 2018, administered phiphones once by inserting the volume of phiphones into a single-use injection machine and dilution them into the Defendant’s arms blood transfusion, from March 12, 2018 to April 13, 201.

(b) Psychotropic drugs possession - 2019 order306

The defendant is not a person handling narcotics.

On January 12, 2018: around 30, the Defendant, at the guest room of the Embel F, carried psychotropic drugs by putting them in the Defendant’s clothes and carrying them, respectively. At around 30, 12:0 fluice 2, Alflaz, 4, Alflaz, 8, DNA 8, Lofa 2, Rofa 2, and stroke 1, respectively.

2. The judgment of the court below

(a) Crimes of medication of phiphonephones;

The lower court rejected Defendant’s assertion and found Defendant guilty of this part of the facts charged on the following grounds.

“The Defendant and his defense counsel testified to the effect that they were prosecuted due to the evidence acquired through unlawful seizure procedures (such as the record of seizure, the result of simple inspection of seizure, and the statement of narcotics on urine and urine, etc.) by the police without a warrant of search, seizure and verification. However, the following circumstances acknowledged by the evidence duly adopted and examined by the court, i.e., that the police who participated in the investigation were present at the court as witnesses without any strong procedure of collecting urines and having confirmed the Defendant’s will in the process of voluntary submission or seizure, and that they were given testimony to the effect that “the mother of the Defendant was unable to obtain due process of law,” and that there was no reason to view that the mother of the Defendant was forced to appear in the process of search and seizure, and that there was no reason to view that the mother of the Defendant’s testimony was legitimate by considering the fact that it was difficult for the Defendant to have been forced to appear in the process of search and seizure, and that there was no reason to view that the mother of the Defendant’s testimony was unlawful.

(b) Possession of psychotropic drugs;

The lower court rejected the Defendant’s assertion and found the Defendant guilty of this part of the charges on the grounds as delineated below.

Defendant and his defense counsel asserted to the effect that they were in possession of psychotropic drugs, which were prohibited by the Act, by being aware of their simple exemption. However, the following circumstances acknowledged by the evidence duly adopted and examined by this court, namely, ① Defendant was unable to bring a specific change in the circumstance during which the above prohibited drug was possessed, ② the seizure of the drug, which was the instant psychotropic drug, was conducted around January 12, 2018, and the majority of the 17 pharmaceutical drugs were confirmed as psychotropic drugs, and the Defendant’s prescription was not confirmed as psychotropic drugs from May 6, 2016 to February 6, 2017, and it was difficult to view that the above prescription was issued at the time of the above prescription to the effect that it was out of the prescription, but it was difficult to view that the prescription was issued at the time of the prescription to the effect that it was out of the first prescription of the drug, as stated in the prescription of this case.

3. Summary of grounds for appeal by the defendant;

A. misunderstanding of facts, misunderstanding of legal principles, 1) Handphone medication

The defendant was under the influence of a medication due to depression and dystrophism, and there is no fact that he administered philophones.

The Defendant’s defense and hair cannot be deemed as evidence submitted by the police against the Defendant’s will and cannot be deemed as voluntarily submitted, and it constitutes evidence of unlawful collection since the police was seized more than 12 hours after voluntary commission. The lower court convicted the Defendant on the ground of illegally obtained evidence without admissibility.

2) Possession of psychotropic drugs

The Defendant’s medicine, which was possessed by the Defendant, was prescribed by the doctor and possessed by the doctor. The Defendant has taken various drugs for a long time due to extreme mental anxiety. Even if the Defendant was not a medicine prescribed, the Defendant possessed them without knowing the fact that it was a psychotropic drug.

C. Unreasonable sentencing

The punishment of the court below (one year of imprisonment and two months of imprisonment) is too unreasonable.

4. The judgment of this Court

A. Determination as to the assertion on the administration of philophones

1) The Defendant’s defense and hair are evidence illegally collected in custody.

On March 13, 2018: On March 13, 2018, 09: 40 taxis 40 taxi free will, the Defendant was voluntarily driven at the House of Government Police Station. [165 pages of the trial records of 2019Do2054 (hereinafter the same trial records)] Voluntary driveing back to the House of Government Police Station [43 pages of the evidence records (hereinafter the same evidence records)] of the Defendant’s her mother’s contact with a police officer, and arrived at the House of Government Police Station on the same day: 12:0 trillion won on the same day. After that, the Defendant, at the time of the Defendant’s her mother’s contact with a police officer, submitted his her urine and her mother to a police officer on the same day: 22:00 on the same day.

The defendant voluntarily 09: 40 hours from 40 to 12 hours at the police station, which submitted urine and hair.

However, with respect to the procedure for voluntary movement, the Act on the Performance of Duties by Police Officers, and Article 3(2) of the same Act, requires a person requested to accompany to a police station, police station, or branch office (including a regional coast guard office; hereinafter referred to as a "police agency") nearest police stations. In such cases, a person requested to accompany may refuse such request. In such cases, a police officer may not allow a person accompanied by a police officer pursuant to paragraph (2) of the same Article to stay in a police agency for more than six hours.

Even on the basis of 22:00, it is certain that even if the defendant submitted her defense and her hair to police officers, he/she submitted her defense and her hair after more than 6 hours from the time when the defendant voluntarily runs. There is no fact that the police has been issued a warrant of arrest while the defendant was staying in the police station.

Therefore, it cannot be deemed that the state of illegal detention, regardless of whether or not the defendant has been staying in a police station for more than six hours after the defendant enters a police station in the form of voluntary confinement. As the admissibility of evidence is denied as evidence illegally collected, the defense and the hair submitted by the defendant in the state of illegal confinement cannot be considered as evidence of guilt. 2) The defense and the hair of the defendant cannot be considered as evidence of voluntary production.

Article 215 of the Criminal Procedure Act provides for seizure, search and inspection by warrant, and it is immediately a compulsory disposition that does not follow warrant in Articles 216 and 217 (for example, seizure at the site of arrest).

Articles 218 and 218 stipulate search and seizure through voluntary submission.In light of the regulatory system, the Criminal Procedure Act provides for search and seizure through voluntary submission of evidence separate from seizure through warrant under Article 215.

It is not necessary to issue a warrant of seizure, search, and verification from the court when collecting evidence with voluntary production. This voluntary submission procedure aims to harmonize the principle of due process of law and the request for the discovery of substantive truth with the aim of realizing criminal justice by allowing investigative agencies to collect evidence promptly and efficiently.

However, since an investigative agency is superior to a suspect, if a voluntary submission is made at the request of an investigative agency, a seizure may be practically conducted under the pretext of voluntary submission. As such, the prosecutor must prove that there is voluntariness in the submission to the extent that it can be ruled out of a reasonable doubt, and if it cannot be deemed that it is voluntarily submitted, the admissibility of evidence cannot be recognized (see Supreme Court Decision 2013Do11233, Mar. 10, 2016).B) In the instant case, even if there was no problem of illegal confinement as seen earlier in the instant case, it is difficult to view that the defendant has voluntariness in submitting the defense and the maternity, and there is no other evidence to recognize voluntartariness. Since the investigative agency was not issued a warrant of search, seizure, and verification, it is not admissible as evidence of unlawful collection.

① Police officers of the medical police station voluntarily driven the Defendant at the police station of the medical police station and demanded the Defendant to voluntarily submit his/her defense and hair. However, the Defendant refused to voluntarily submit his/her defenses and hairs (Evidence No. 47 pages of the evidence record) by asserting that there was no fact that he/she administered phiphones, and that the Defendant refused to voluntarily submit his/her defenses and hairs (Evidence No. 53 pages of the evidence record). As police officers continued to persuade, the Defendant refused to submit his/her defenses and hairs without permission, and reversed his/her intention of voluntary submission (

② Police officers testified in the lower court at the time of the trial to the extent that the Defendant, at the time of the administration of phiphonephones, had a mental and physical condition to understand the meaning and effect of voluntary submission, and that the Defendant had sufficiently explained the meaning and effect of voluntary submission. Thus, police officers should have given up the seizure through voluntary submission and obtained a warrant of seizure, search, and verification to ensure urines and hairs, since the Defendant expressed his/her intent to refuse voluntary submission despite hearing the explanation of the police officers as above.

③ Police officers entered the Defendant’s mother G as a police station for the purpose of understanding and gathering the Defendant again. While having obtained G’s snow, the Defendant submitted the Defendant’s eye to the police officers instead of urine by putting water inside a urinald body. G not a police officer consented to the gathering of urine only on the condition that the Defendant gather (at least 53 pages of evidence records and 148 pages of the trial records), and if there are circumstances, the Defendant did not voluntarily submit G’s snow gathering.

As a result, the Defendant received a defense from G and female police officers, while opening a door to the roadsides in the toilets where urinals are located.

④ Police officers were present in the court of the lower court as a witness, and did not collect salvine and hair repeatedly, and voluntarily submitted according to the Defendant’s will. However, even according to the content of the investigation report prepared by the police officer in the course of collecting salvines and hairs, the police officers can confirm the fact that the Defendant had no intent to voluntarily submit salvines and hairs to the Defendant. 3) The secondary evidence, such as the outcome of salvines and maternal assessment, is inadmissible.

Article 308-2 of the Criminal Procedure Act provides that evidence collected in breach of due process shall not be admitted as evidence. In principle, not only the evidence collected by the investigative agency but also the secondary evidence obtained based on it shall not be admitted as evidence for conviction (see Supreme Court Decision 2008Do11437, Mar. 12, 2009).

As seen above, as long as police officers received the defense and hair from the defendant, they are illegal, a report on investigation with the purport that they obtained a simple trial examination and a training reaction due to the defendant's defense, and the results of appraisal by the National Science Investigation Institute on the defense and hair of the defendant also have no admissibility of evidence as secondary evidence.

B. Determination on the assertion on the part of holding psychotropic drugs

1) Relevant provisions and legal principles

Article 4(1) of the Narcotics Control Act provides that a person other than a person handling narcotics may handle narcotics, notwithstanding Article 4(2) of the same Act, if he/she possesses narcotics after being administered by a medical practitioner handling narcotics, etc.; however, Article 4(2) of the same Act provides that a person other than a person handling narcotics may handle narcotics, etc.; however, Article 4(2) of the same Act provides that a person other than a person handling narcotics may handle narcotics, etc. is in possession of narcotics after being administered by a medical practitioner handling narcotics.

The finding of guilt in a criminal trial shall be based on evidence with probative value, which makes it possible for a judge to have the truth that the facts charged are true beyond a reasonable doubt. If there is no such proof, even if there is no doubt as to the defendant's guilt, the conviction cannot be made (see Supreme Court Decisions 2001Do2823, Aug. 21, 2001; 2005Do8675, Mar. 9, 2006, etc.).

B) In the instant case:

The defendant presented at the court of the court below a prescription that the defendant was given a prescription by the doctor to the effect that the defendant was given a stroke, rodm, rodm, and drums, as follows:

1.12. A stroke, roding, and dcoding in possession may not exclude the possibility of being a drug possessed by the above prescription.

(1) A strokem.

The Defendant, during the period from May 6, 2016 to February 6, 2017, as follows, was determined by the intention of 140 m (No. 1, No. 208 to 211 of the trial record, submitted by the defense counsel).

The defendant's stm that he possessed on January 12, 2018 cannot exclude the possibility of one of the above-mentioned stm from the above-mentioned stm.

Finally, even though the Defendant’s date on which he was determined by the stroke-m on February 6, 2017, was 1 year prior to the date of possession, it is not always deemed that the Defendant was in custody of the drugs prescribed at least one year prior to the date of possession. This is more true in that the stroke-m, which was prescribed during the foregoing period, is not 140, and that the Defendant continued to receive treatment, such as strokes, depressions, etc.

(2) Two softs.

During the period from May 6, 2016 to December 27, 2017, the Defendant received each of the following provisions, in total, 63 of the Lobsium (No. 1, No. 208, No. 209 of the trial record, No. 1, No. 209 of the defense counsel submitted, and No. 225 of the trial record) containing the solobsium containing the solosium ingredients, and the Lobsium containing the solosium ingredients (No. 2, No. 225 of the trial record).

The defendant's Roster 2 held on January 12, 2018 is likely to be part of the part of the part of the part of the part of the part of the part of the part of the part of the part of the I as determined by the I mental and council members before one month, and it cannot be ruled out.

(3) A set forth in paragraph (8).

On December 27, 2017, the Defendant was prescribed one day, seven minutes a day by a master or Council member (Evidence No. 2, 225 pages of the trial record, submitted by the defense counsel).

On January 12, 2018, the defendant is likely to set up a so-called a so-called so-called a so-called so-called a so-called so-called a so-called so-called a so-called "pro-so-called" as stipulated by I Mentality and Council Members before a month.

B) Where the Defendant did not submit a prescription, the Defendant did not submit a prescription as to fluice 2, 80, 400, 1000, and 100,000 in possession of January 12, 2018. However, in light of the following circumstances, the possibility that the Defendant was provided with a prescription for treatment, such as fluice crus and strokes, cannot be ruled out.

① Sluice fludine stability agents used for fludine fludine fludine fludine fludine fludine fludine fludine fludine fludine fludine fludine fludine fludines, which were determined by the Defendant, seems to have the same efficacy as rodin fludine fludine fludum.

② From 2 to 3 years, the Defendant had been taking psychotropic drugs by prescribing psychotropic drugs for treatment of symptoms, influences, depression, depression, etc. which appear, and was hospitalized in a hospital due to editing mental division.

(3) In the original judgment, the prosecutor shall make the defendant known to the general regional headquarters of the National Health Insurance Corporation.

9. From January 1 to January 13, 2018, the National Health Insurance Corporation made a request for “if there is data on the preparation of fluice, Alflas, Alflas, Alflas, Alflas, Loflas, and Alflasm, to submit them (239 pages of the trial record).” The National Health Insurance Corporation’s regional headquarters at the National Health Insurance Corporation did not have any details of preparation of the above drugs during the pertinent period. However, as seen supra, as seen by the Defendant, it is difficult to trust the details of inquiry of the National Health Insurance Corporation as it is, since the Defendant was prescribed for the drugs containing the Lofa and DNA ingredients as seen above.

④ Although the Defendant did not make a statement from the beginning that he had been prescribed as a DNA P Pamp and AP in the lower trial, it cannot be ruled out that whether he/she has received a prescription for a specific ingredient from a doctor, or that he/she has received a prescription for a specific ingredient. It cannot be said that the prosecutor sufficiently proven that the Defendant was in possession of a psychotropic drug without a prescription.

⑤ On January 12, 2018, the Defendant, along with male, was accommodated in the telephone, was reported to the police by the father of the Defendant, and was confirmed whether the phone was administered. At that time, the Defendant voluntarily submitted psychotropic drugs, such as fluice and fluc book, possessed in the clothes in question, to the police. In the Defendant’s urine, the phone ingredients were not discovered, and the Defendant was judged to have been voiced in the examination for confirmation on the strokefin and strokef.

(6) It is difficult to readily conclude that the Defendant’s act of taking excessive psychotropic drugs is a medicine that the Defendant possesses without prescriptions.

C. As examined above, since there is not sufficient evidence to prove each of the facts charged in this case, the facts charged in this case constitutes a case where there is no evidence to prove a crime. Nevertheless, the court below found the defendant guilty only with the evidence in its holding, and there is an error of law by misunderstanding the facts or by

5. Since the appeal by the sample defendant is well-grounded, the judgment of the court below shall be reversed in accordance with Article 364(6) of the Criminal Procedure Act, and the following decision shall be rendered again.

[Judgment as to Defendant B]

The facts charged of this case are as indicated in the above Paragraph 1, and since this falls under a case where there is no proof of crime as seen in the above Paragraph, the defendant shall be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment of innocence according to the defendant's will shall not

Judge Limited Number of Judge Dol-mar

Judges Kim Jong-sung

Judges Lee Jae-chul-