2019Gohap97, 105(combined) Act on the Control of Narcotics, etc. (marijuana)

1. A;

2. B

Kim Sung-hun (prosecutions) and leaptable (Trial)

Attorney Hong-gi (for the defendant A)

The chief of the attorney-at-law (for the defendant B)

May 17, 2019

Defendant A shall be punished by imprisonment with prison labor for a period of two and a half years, and by imprisonment for a period of three years.

However, the execution of the above punishment shall be suspended for four years for Defendant A and for five years for Defendant B from the date this judgment became final and conclusive.

To be put on probation against the Defendants and order them to take 80 hours of each pharmacologic treatment course.

The seized hemp 199.9g (No. 3), the aviation special class (No. 4), and the hemp smoking pipe (No. 10), which concealed the hemp, shall be confiscated from the Defendant A, respectively.

1,000,000 won shall be collected jointly from the Defendants.

To order the Defendants to pay an amount equivalent to the above additional collection charge.

Criminal History Office

“2019Gohap97, 105(Joint)1)

1. No person shall import marijuana (joint crimes committed by the defendants);

A. The Defendants shall import and smoke marijuana together, and Defendant B, around November 2018, notified Defendant B of the address of E (Seoul F building G) received from Defendant D (Seoul F building G) and the address of Defendant B notified Defendant B of the address of the said E, with the intent of the proposal, “I would like to send it to Defendant A, if I would be informed of the address of a person who does not engage in the taking-out of narcotics without the taking-out of narcotics.” Accordingly, Defendant A proposed that “I would receive 20,000 won if I would receive the international mail,” knowing that the female-child group of friendly D is unrelated to the narcotics, and is a person who takes-out of her taking-out.”

Since then on December 5, 2018, C concealed about 10g of marijuana in the air special class post (H), entered the sender into 'I', 'J', 'J', and 'Seoul Gangnam-gu F Building G,' and the above air special class mail arrived at the Incheon International Airport located in the Jung-gu Incheon Metropolitan Government Port through K around 16:55 of the same month.

Accordingly, the Defendants imported approximately 10 grams in collusion with C.

B. Upon receipt of the proposal to the effect that, as above, Defendant B imported about 10g of marijuana as above, Defendant B "at the time of entry into the Republic of Korea, where there is a difference in the internal storage of the hemp. It is more than that of the initial delivery." Defendant B accepted the delivery of the hemp back to the same address."

After December 20, 2018, C concealed about 200 grams in the air special class post (L), entered the sender into 'M', 'N' and 'Seoul Gangnam-gu F Building G,' and the above air special class post arrived at the Incheon International Airport located in the Jung-gu Incheon Metropolitan Government Port through K around 17:45 of the same month.

Accordingly, the Defendants imported approximately 200 grams in collusion with C.

2. Smoking marijuana;

No person shall smoke marijuana.

(a) Smoking marijuana in the first order on January 2018 (the co-principal of the accused)

The Defendants conspireded on January 1, 2018, on a pipe in Yongsan-gu Seoul, Yongsan-gu, Seoul, put the marith of marijuana into a pipe made of stuffed paper, put the marith of marijuana, and smoked marijuana by spreading a smoke that occurs after the rater’s fire.

(b) Smoking in marijuana around December 8, 2018 (the co-principal of the accused)

around December 8, 2018, Defendants conspired to smoke in the same manner as the above A, among about 10g of marijuana imported, in the R beach located in the Jung-gu Incheon, Jung-gu, Incheon, and in the same way as the above A.

C. Defendant A’s sole criminal conduct

1) On December 2018, Defendant A smoked marijuana in the vicinity of his residence in Gyeyang-gu Incheon, including the 10gs of hemp imported under the above-mentioned 1-A, in the pipe, and the smoke generated after inserting the 10gs of hemp imported as specified in the above-mentioned 1-A.

2) On December 2018, Defendant A smoked marijuana in the vicinity of his residence in Gyeyang-gu, Incheon, and in a way of smoke that occurs after inserting the fluencies of the 10gs of the hemp imported as referred to in the above 1-A, into the pipe, attaching the fluencies of the 10gs of the hemp imported as referred to in the above 1-A.

D. Defendant B’s sole criminal conduct

1) On December 2018, Defendant B smoked marijuana in the middle of the body near his residence in Gwangjin-gu Seoul Special Metropolitan City, and in the middle of about 10g of the 10gs of the hemp imported as described in the above 1-A, in the pipe, in the pipe, and in the way of a smoke generated after having the breater affixed it.

2) As seen in the above 1, Defendant B smoked the marith of marijuana, and 2 to 3 days later, Defendant B smoked marijuana by inserting the marith of marijuana in pipes among approximately 10gs of marijuana imported as specified in the above 1-A, and inserting the marith of marijuana into pipes, and then raising a smoke generated after cutting the marith of marijuana.

3) As seen in the above 2-A, Defendant B smoked the marith of marijuana, and around the 2-3-day period, Defendant B smoked marijuana by inserting the marith of marijuana in pipes among approximately 10gs of marijuana imported as specified in the above 1-A, and inserting the marith of marijuana in the pipe, thereby spreading the marith of it.

4) As described in the above 3, Defendant B smoked the marith of marijuana, and smoked by inserting the marith of hemp around his residence, and inserting the marith of hemp among approximately 10gs imported as described in the above 1-A, as described in the above 1-A, into the pipe, with the marith of the marith of hemp.

5) As described in the above 4, Defendant B smoked the marith of marijuana, and smoked by inserting the marith of hemp around his residence, and inserting the marith of hemp among about 10gs of hemp imported as described in the above 1-A, as described in the above 1-A, into the pipe, with the marith of the marith of marijuana, and with the marith of the marith of it.

6) On January 1, 2019, Defendant B smoked marijuana by inserting the marith of the body near his residence, and 10g of the 10gs of marijuana imported as specified in the above 1-A, in the pipe, with the marith of the marith of the marith of the hemp imported as specified in the above 1-A.

Summary of Evidence

" 2019, 97"

1. Defendants’ respective legal statements

1. Protocol concerning the interrogation of the Defendants by the prosecution

1. Statement made by each prosecutor's office with respect to E and D;

1. Each investigation report (including accompanying materials, as set forth in the table of evidence Nos. 5, 8, 11, 12, 14, 18, 20, 21, 24, 27, 28, 33, 35, 47, and each accompanying material);

1. Mutual assistance investigation instruction (including the case of detection of 200 grams of the hemp plant in the United States), Incheon Customs Analysis Request and response letter, notification of the results of legal assessment (A), notification of the results of legal assessment (defensation), notification of the results of legal assessment (defensation of marijuana ingredients), notification of the results of appraisal (including each accompanying document);

1. Each protocol of seizure and the list of seizure;

"2019, 105"

1. Defendants’ respective legal statements

1. Protocol concerning the interrogation of the Defendants by the prosecution

1. Each prosecutor's statement concerning E and D;

1. Each investigation report (including the table of evidence Nos. 7, 10, 11, 12, 13, 17, 19, 24, 32, and respective accompanying documents);

1. Mutual assistance investigation instruction (including the case of detection of 200 grams of the hemp plant in the United States), Incheon Customs Analysis Request and reply letter, narcotics appraisal report, legal and chemical appraisal report (narcotics identification-20027) and appraisal report (including each accompanying document);

1. Application of Acts and subordinate statutes to each protocol of seizure and the list of seizure;

1. Article relevant to the facts constituting an offense and the selection of punishment;

(a) Defendant A: Articles 58(1)5 and 3 subparag. 7 of the Narcotics Control Act, Article 30 of the Criminal Act (the importation of marijuana and the choice of limited imprisonment), Article 61(1)4 (a), and Article 3 subparag. 10 (a) of the Act on the Control of Narcotics, Etc. (the crime of public offering is added to Article 30 of the Criminal Act, the occupation of marijuana smoking, and the choice of imprisonment);

(b) Defendant B: Articles 58(1)5 and 3 subparag. 7 of the Narcotics Control Act, Article 30 of the Criminal Act, Article 61(1)4 (a), and Article 3 subparag. 10 (a) of the Act on the Control of Narcotics, Etc. (the crime of public offering is added to Article 30 of the Criminal Act, the point of smoking marijuana, and the choice of imprisonment);

1. Aggravation of concurrent crimes;

Defendants: former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (aggravating concurrent crimes as to the importation of marijuana as stated in paragraph (1) 2 of the same Article)

1. Reduction of a small amount;

Defendants: Articles 53 and 55(1)3(3) of the Criminal Act (including the following favorable circumstances):

1. Suspension of execution;

Defendants: Article 62(1) of the Criminal Act (The following favorable circumstances)

1. Orders for probation and education;

Defendants: each of the Defendants under Article 62-2 of the Criminal Act

1. Confiscation;

Defendant A: the main sentence of Article 67 of the Narcotics Control Act [limited to 19.9ggs excluding 0.1gs 19gs excluding 200gs mariths 200gs mariths, but 0.1gs 0.1g in its appraisal process (see, e.g., the evidence records 14th 2019

1. Additional collection:

Defendants: The proviso to Article 67 of the Narcotics Control Act

○ Calculation of Additional Imposition Charges

(a) 1,00,000 won per 1 gram of marijuana, as shown in its holding (10 grams: 1,000,000 won per 1 gram of marijuana;

(b) No collection shall be made for the smoking part of the port of registry No. 2(a) ;

1. Order of provisional payment;

Defendants: Article 334(1) of the Criminal Procedure Act

Reasons for sentencing

1. Scope of applicable sentences under law: Imprisonment for two years and six months from June to June 22; and

2. The scope of recommended sentences according to the sentencing criteria;

(a) First-class crime (basic crime): the crime of violation of the Act on the Control of Narcotics, etc. (marijuth) or (b) the same;

[Determination of Types] Import, Export, etc. (Type 2) of Narcotics Crimes; marith (c) mariths

【Special Convicted Person】

[Recommendation and Scope of Recommendation] Basic Field, 2 years to 4 years of imprisonment

(b) The first concurrent crime: the crime of violation of the Act on the Control of Narcotics, etc. (mariana) in the judgment; and

[Determination of Types] Import, Export, etc. (Type 2) of Narcotics Crimes; marith (c) mariths

【Special Convicted Person】

[Scope of Recommendation and Recommendation] Basic Area, Two years of imprisonment

(c) Second concurrent crimes: Crimes of violation of the Act on the Control of Narcotics, etc. (marijuth) in holding paragraph (2);

[Determination of Type] Medication, Simple Possession, etc. (Type 2 ), marijuana, flag (d) and (e), etc.

【Special Convicted Person】

[Recommendation and Scope of Recommendation] Basic Field, Imprisonment of 8 months to 1 year and 6 months;

(d) Scope of recommendations according to the standards for handling multiple crimes: Imprisonment for two years to six years (the upper limit of the basic crime + the upper limit of the first concurrent crime + the upper limit of the second concurrent crime + 1/2 + 1/3).

(e) Scope of the recommended sentencing that is modified according to the applicable sentencing range: Imprisonment of two years and six years and six months from June to six months (in cases where the lowest limit of the sentencing range recommended by the sentencing criteria is inconsistent with the statutory minimum limit of the applicable sentencing range, it shall be based on the statutory minimum limit of the applicable sentencing range); and

3. Determination of sentence;

(a) Defendant A: Imprisonment with prison labor for 2 years and 6 months, and 4 years of suspended execution;

[Sluri circumstances] Defendant A recognizes his criminal act, there is no record of punishment for narcotics crime, and the degree of participation is relatively relatively less light in consideration of the role of the criminal act and the circumstances of the criminal act. Defendant A has repeated not to repeat the crime, and the members of family including her fry will actively cooperate for the rehabilitation of Defendant A.

[Unfavorable Circumstances] Defendant A imported marijuana several times, and the nature of the offense of importing marijuana using the domicile of a third party is not less weak. The quantity of the hemp imported by Defendant A is not much significant.

In addition, in consideration of all the sentencing conditions shown in the arguments of this case, such as the economic conditions, family environment, and circumstances after crimes of Defendant A, the punishment shall be determined as ordered.

(b) Defendant B: Three years of imprisonment and five years of suspended execution; and

【Lied circumstances】 Defendant B recognized his criminal act, and there is no record of punishment for the crime. Defendant B’s social ties are relatively clear, and it has repeated not to repeat.

[Unfavorable circumstances] Defendant B imported marijuana several times, and the quality of the offense of importing marijuana using the domicile of a third party is not less weak. The quantity of the hemp imported by Defendant B is not much significant.

In addition, in consideration of the overall sentencing conditions shown in the pleadings of this case, such as the family environment, health conditions, motive of the crime, and circumstances after the crime, the punishment as ordered shall be determined.

The presiding judge, the Giman Judge

Judges Kim Gin-han

Judges Maximum-beh

1) As one of the facts charged in each case against the Defendants, the facts charged are consolidated and entered. The identity of the facts charged is recognized, and part of the facts charged is revised to the extent that it does not disadvantage the Defendants’ right of defense.

2) Defendant A asserts that, after importing marijuana, he only assisted Defendant B to commit the act of importing it by informing the address of receiving it or collecting mail, etc. However, according to the evidence in the summary of the evidence as indicated below, Defendant A designated the place where he will receive the imported marijuana with the knowledge that Defendant B would import the narcotics. Moreover, as long as the crime of importing marijuana is based on the premise that the marijuana sent from abroad is delivered to the Republic of Korea, Defendant A’s act directly involved in the process of the movement of marijuana and distributed the imported marijuana was conducted in entirety with Defendant B, beyond the extent of facilitating Defendant B’s commission of the crime of importing marijuana. Accordingly, it is reasonable to deem that Defendant A had functional control over and intent to commit the act of importing marijuana with the principal offender as to the crime of importing marijuana.

3) Confiscation or collection under Article 67 of the Narcotics Control Act is not aimed at deprivation of the benefits from a criminal act, but rather is a disposition of the punitive nature. Thus, even if no benefits have been acquired from the criminal act, the court shall order the collection of the equivalent value, and if there are several persons who committed the crime with regard to the scope of the equivalent value, the court shall order the collection of the equivalent value within the scope they handled (see Supreme Court Decision 2001Do5158, Dec. 28, 2001).