Whether a principal offender of a criminal act engaged in the business of exporting, importing, manufacturing, or selling narcotics in violation of Article 6 of the Act on Special Cases concerning the Prevention of Illegal Trafficking in Narcotics is subject to forfeiture and collection pursuant to Articles 13 through 16 of the same Act (affirmative)

In accordance with Articles 13 through 16 of the Act on Special Cases concerning the Prevention of Illegal Trafficking in Narcotics, Etc. (hereinafter “Narcotic Trade Prevention Act”), a principal offender who engages in the business of exporting, importing, manufacturing, or selling narcotics in violation of Article 6 of the Act on Special Cases concerning the Prevention of Illegal Trafficking in Narcotics shall be subject to forfeiture and Collection of the proceeds from such criminal act. However, if a principal offender who facilitates the criminal act by supplying narcotics in return for the payment from the principal offender cannot be deemed to have acquired the proceeds from such criminal act jointly with the principal offender, he/she shall not be subject to forfeiture and Collection of the proceeds from such criminal act, and shall not be subject to forfeiture and Collection of the proceeds from the principal offender, and shall be deemed to have been equivalent to the property

Articles 6, 13, 14, 15, and 16 of the Act on Special Cases concerning the Prevention of Illegal Trafficking in Narcotics, Etc., Articles 30 and 32 of the Criminal Act

Defendant

Defendant

Attorney Park Ho-hun et al.

Suwon District Court Decision 2020No224, 288 Decided November 5, 2020

Of the lower judgment, the part concerning the collection of penalty surcharge is reversed. 73,800,000 won shall be collected from the Defendant. The remaining appeals are dismissed.

The grounds of appeal are examined.

1. As to the assertion of unreasonable sentencing

According to Article 383 subparagraph 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years has been imposed, an appeal on the grounds of unfair sentencing shall be allowed. In this case where a more minor sentence has been imposed on the defendant, the argument that the punishment is too unreasonable shall not be a legitimate

2. As to the assertion that the collection of penalty is illegal

A. In accordance with Articles 13 through 16 of the Act on Special Cases concerning the Prevention of Illegal Trafficking in Narcotics, Etc. (hereinafter “Narcotic Drugs Act”), a principal offender who engages in the business of exporting, importing, manufacturing, or selling narcotics in violation of Article 6 of the Act on Special Cases concerning the Prevention of Illegal Trafficking in Narcotics, etc. shall be subject to forfeiture and Additional Collection. However, if it cannot be deemed that a principal offender who facilitates the crime by supplying narcotics in return for the payment from the principal offender and in return for the payment from the said principal offender has acquired the profits generated from the said criminal act jointly with the principal offender, the principal offender shall not be subject to forfeiture and Additional Collection as in accordance with the above provisions, and only the property acquired by aiding and abetting from the principal offender shall be subject to forfeiture and Additional Collection.

B. In relation to the Defendant’s crime of aiding and abetting the violation of the Narcotics Control Act, the lower court collected KRW 315,668,700 from Nonindicted Party 1 and the remaining KRW 317,468,70 after deducting the amount confiscated from Nonindicted Party 1 the amount of KRW 11,640,00, which is the property acquired by the principal offender of the crime of aiding and abetting the Defendant’s violation of the Narcotics Transactions Prevention Act (hereinafter “Narcotic Drugs Control Act”), which is the property acquired by the crime of aiding and abetting the sale of phiphones, and collected KRW 1,80,000 from the Defendant’s total sum of KRW 317,468,70 [the amount of KRW 315,68,700 related to the crime of aiding and abetting the Violation of the Narcotics Transactions Prevention Act = KRW 327,308,708,700, which is the property acquired by Nonindicted Party 1, etc. 1, and confiscated KRW 100,000.1

C. The record reveals the following facts and circumstances.

1) As to the facts charged that the Defendant, in collusion with Nonindicted 1, 2, 3, 4, and 5, received total amount of KRW 327,308,700 from July 3, 2018 to March 23, 2019, and sold the volume of phiphones, thereby engaging in the trade of psychotropic drugs, the prosecutor indicted the Defendant by applying Article 6(2) of the Narcotics Transaction Prevention Act, Articles 60(1)2, 4(1)1, and 2 subparag. 3(b) of the Narcotics Control Act, and Article 30 of the Criminal Act.

2) However, from the first instance trial to March 20, 2020, the prosecutor applied for the amendment of the indictment with the following purport: “The Defendant, despite being aware of the fact that Nonindicted Party 1, etc. want to engage in the business of selling and purchasing phiphones, he/she, thereby facilitating Nonindicted Party 1, etc. to commit the above crime by supplying Nonindicted Party 1, etc. with a total of approximately KRW 400 gh of 13 times from May 2018 to March 2019, thereby aiding and abetting Nonindicted Party 1, etc. to engage in the business of selling phiphones, which are psychotropic drugs, thereby changing Article 30 of the Criminal Act from among applicable provisions of the Criminal Act into “Article 32(1) of the Criminal Act”.

3) Accordingly, on March 24, 2020, the first instance court permitted the above motion for modification of indictment during the fourth trial of the first instance court, and the Defendant stated that all the modified charges were recognized on the date above.

4) Meanwhile, Nonindicted Party 1, etc. posted an advertisement for the sale of phiphones on the Internet, and sold phiphones as a business by using the “telgram”, which is a mobile phil, from the purchaser who reported and contacted, and being transferred the price of phiphones to a specific account, subdividing in advance and transmitting the address and place of phiphones concealed in Seoul and other nationwide regions, or sending phiphones using phiphones using high-speed bus freight services.

5) However, the Defendant did not participate in the above sales of philophones by Nonindicted 1, etc. In addition, the Defendant received not only the sum of KRW 72,00,000 in return for the philophones supplied to Nonindicted 1, but also did not receive from Nonindicted 1, etc. the sales of philophones sold by Nonindicted 1, etc. as a business, and only supplied philophones to Nonindicted 1 for its own account.

D. Examining the aforementioned facts and circumstances in light of the legal principles as seen earlier, Nonindicted Party 1, etc., the principal offender, obtained a total of KRW 327,308,700,000,000, from the criminal act committed in violation of Article 6 of the Narcotics Transaction Prevention Act, but the Defendant merely provided Nonindicted Party 1, etc. with a total of KRW 400,00,000 per 1g, in order to assist Nonindicted Party 1, etc. to engage in the trade of phiphones while being aware that Nonindicted Party 1, etc., the principal offender, was trying to engage in the trade of phiphones, but it is difficult to view that Nonindicted Party 1, etc., and jointly with Nonindicted Party 1, etc., constituted a person who acquired illegal profits from the trade of phiphones. Accordingly, the penalty should be collected from the Defendant, who is an aiding and abetting offender of the crime of Article 6 of the Narcotics Transaction Prevention Act (=400g x 180,00).

E. Nevertheless, with respect to the crime of aiding and abetting the violation of the Narcotics Transaction Prevention Act, the lower court additionally collected the remainder after deducting the money confiscated from Nonindicted 1 from the total amount of sales proceeds of junopon, which is a property acquired by Nonindicted 1, etc., the principal offender, from the Defendant, in relation to the crime of aiding and abetting the violation of the Narcotics Transaction Prevention Act. In so doing, the lower court erred by misapprehending the legal doctrine on the collection of additional charges and the calculation of additional

3. Conclusion

Therefore, the part of the judgment of the court below is reversed. Since this part is sufficient for this court to directly judge, it is decided in accordance with Article 396 of the Criminal Procedure Act and the remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

For the same reasons as above, Articles 16(1) and 13(1)1 of the Narcotics Transaction Prevention Act, and proviso of Article 67 of the Narcotics Control Act, 73,800,000 won from the Defendant [The surcharge 72,00,000 won related to aiding and abetting the Violation of the Narcotics Transaction Prevention Act + the surcharge 1,80,000 won related to the violation of the Narcotics Control Act] shall be collected from the Defendant.

Justices Kim H-soo (Presiding Justice)