Whether the court may render a sentence of confiscation or collection under Article 67 of the Narcotics Control Act as to the facts not found in the crime (negative)

In order to sentence confiscation or collection under Article 67 of the Narcotics Control Act, the requirements for confiscation or collection should be related to the crime for which a public prosecution has been instituted. As such, the court may not sentence confiscation or collection for the facts not recognized in the crime.

Article 67 of the Narcotics Control Act

Supreme Court Decision 2009Do4391 Decided August 20, 2009

Defendant

Defendant

Attorney Han Tae-tae

Seoul Central District Court Decision 2016No2029 Decided September 26, 2016

The part of the judgment of the court below and the judgment of the court of first instance are reversed. The remaining appeals are dismissed.

1. We examine the grounds of appeal.

According to the records, the defendant appealed against the judgment of the court of first instance and asserted only unfair sentencing as the grounds for appeal. In such a case, the argument that the judgment below erred in violation of law or misapprehension of legal principles is not a legitimate ground for appeal.

In addition, the argument that the court below erred in violation of the principle of balanced punishment or accountability due to incomplete deliberation on the conditions of sentencing and the method of sentencing determination falls under the allegation of unfair sentencing. However, according to Article 383 Subparag. 4 of the Criminal Procedure Act, only the case where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for more than ten years is declared, an appeal on the grounds of unfair sentencing is allowed. Thus, in this case where the defendant was sentenced to more minor punishment, the argument that the sentence is too unreasonable cannot be a legitimate

2. The decision shall be made ex officio;

A. As seen earlier, the lower judgment’s assertion that there was an error of misapprehension of the legal doctrine does not constitute a legitimate ground for appeal, but the appellate court may ex officio render an adjudication in the lower judgment on the grounds that there are grounds under subparagraphs 1 through 3 of Article 383 of the Criminal Procedure Act even if the appellate brief is not included in the appellate brief pursuant to Article 384 of the Criminal Procedure Act. As such, the grounds for appeal claiming such a point of view are the meaning of demanding ex officio intervention (see Supreme Court Decision 2016Do857, Apr. 12, 2016

B. In order to sentence confiscation or collection under Article 67 of the Narcotics Control Act, the requirements for confiscation or collection should be related to the crime against which a public prosecution was instituted. As such, the court should not render a sentence of confiscation or collection for the facts not recognized in the crime (see, e.g., Supreme Court Decision 2009Do4391, Aug. 20, 2009).

However, the judgment of the court of first instance maintained by the court below acknowledged that the defendant received the non-indicted 1's non-indicted 2 times in a set amount of money from the non-indicted 1,500 won, which is the market price of the defendant, on the ground that the defendant had a total of 0.7gs for the non-indicted 1, a total of 0.7gs for the non-indicted 1, in two times, and thus ordered the non-indicted 1,500 won to be collected.

In light of the above legal principles, as long as the first instance court determined that the quantity of philophones received from the crime cannot be specified, the Defendant cannot be ordered to collect additional tax on the ground that the quantity of philophones received from the crime cannot be specified.

Nevertheless, the court below which maintained the judgment of the court of first instance ordering the Defendant to collect additional collection is erroneous in the misapprehension of legal principles as to additional collection, which affected the conclusion of the judgment.

3. Therefore, the part of the judgment of the court below concerning additional collection is reversed, and this part is sufficient to be judged by this court, and therefore, it is decided to see the judgment of the court of first instance, even if it is not sufficient to collect additional collection from the defendant for the reasons as seen earlier, it is unlawful by ordering the defendant to collect additional collection. Thus, the part concerning additional collection among the judgment of the court of first instance is reversed (it is sufficient to reverse the judgment of the court of first instance as to this, since no additional collection is ordered to be ordered to the defendant) and the remaining appeals are dismissed

Justices Kim Chang-suk (Presiding Justice)