2015No538 Violation of the Act on the Control of Narcotics, etc. (fence)

A

Prosecutor

Park Dong-dong (prosecution, public trial)

Attorney B

Seoul Eastern District Court Decision 2014Da3136, 2015 Decided April 20, 2015

107(Consolidated Judgment) Judgment

January 22, 2016

The part of the judgment of the court below regarding the medication of each psychotropic drug at a hotel shall be reversed. The defendant shall be punished by imprisonment for eight months.

except that the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.

The appeal against the remainder of the prosecutor is dismissed.

1. Summary of grounds for appeal;

The gist of the grounds for appeal by the prosecutor is that according to the prosecutor's office, L, P and U's respective prosecutor's office and the court below's oral statement, each of the facts charged in this case is proved clearly, but the court below's judgment that acquitted the defendant is erroneous and adversely affected by the

2. As to the sales of each psychotropic drug in the judgment below

A. Summary of this part of the facts charged

(1) Points of selling psychotropic drugs to C

(A) 3 times (Article 1-A, Section 36 of the facts charged, No. 2014 high group 3136) selling each 'Mephone' (hereinafter referred to as 'Mephonephone')

① On August 2012, the Defendant issued and sold 50,000 won and approximately 0.5 g of psychotropicphones, which are psychotropic substances contained in vinyl Corresponding in Gangnam-gu, Seoul, and around February 2012, the Defendant issued and sold approximately 500,000 won and approximately 1g of philopon to C, which is contained in vinyl Corresponding in Gangnam-gu, Seoul, at the front of G store located in Gangnam-gu, Seoul, and sold to C, and ③ from November 2012 to December 20 of the same year, the Defendant issued approximately 50,000 won and received KRW 1g of philopop to C contained in vinyl sporespores.

(B) One time for sale by IMM (hereinafter referred to as 'EXP') (Article 2 of the facts charged in relation to 2015 Godan107)

On November 2, 2011 through December 2, 2011, the Defendant issued KRW 300,00 from Seongdong-gu Seoul apartment commercial building, and delivered psychotropic drugs X-si 5 in order to sell them.

(2) The point of sale of psychotropic drugs for L

(A) The Defendant, around July 2013, issued 80,000 won and sold 1g of the penphone to L in front of L in Gangnam-gu, Seoul and issued approximately 800,000 won to L in front of L’s house, ② around August 2013, issued 80,000 won and KRW 1g of the penphone to L in front of L’s vinyl, and sold 1g of the penphone to L in front of its vinyl. around September 192, the Defendant issued approximately 160,000 won to L’s house and sold approximately 2g of the phone to L in front of its vinyl.

(B) One time for the sale of the X-si (Article 2015 high group 107 of the facts charged)

On July 2013, the Defendant received KRW 500,00 from L, and sold 10,000 to L, an X-si.

B. The judgment of the court below

The lower court determined that this part of the evidence as to the facts charged only pertains to C, L, which is the de facto purchaser, and the content of each of the statements cannot be deemed as having credibility to the extent that it excludes reasonable doubt due to the following reasons, and there is no other evidence to acknowledge each of the above facts sold by the Defendant.

(1) First of all, as evidence that conforms to the [the point of selling psychotropic drugs to C], there is a prosecutor’s office and the original legal statement of the purchaser, and in light of the following circumstances known by the record, it is difficult to view that C’s statement is credibility.

O C stated that the price was almost paid in cash when the Defendant purchased philophones from the Defendant, and that the amount was about KRW 2 million paid in the bank account in the name of the Defendant over about 1-2 times during the period of 200,000 won, and that the amount was deposited into the bank account in the name of the Defendant over 1-2 times. In addition, although C stated that the Defendant purchased philophones 3 times and EX 1 time, it was not submitted financial data to support the monetary transaction claimed by C.

According to the entry of ○ Investigation Report (to attach and analyze currency details), C and the Defendant are charged facts.

(A) ① The fact that the call was made several times at the early 2012 Warman on August 2012, 2012, but at the time, C and the Defendant were very friendly and frequently made a statement. As such, the above monetary content is not high value as evidence supporting the transaction of philop, as evidence supporting the transaction of philop.

○ On July 21, 2014, when the first statement was made by the prosecution, ○○ stated that the purchase of philophones was not stated in the facts charged, but rather, on September 2012, 2012, the statement was made to the effect that the Defendant first viewed the philophones possessed by the Defendant in the hotel just in Songpa-gu Seoul N and that the Defendant changed the method of medication. The statement was reversed from the time when the second statement was made by the prosecution on September 29, 2014 at the time when the second statement was made by the prosecution, and on August 2012, 2012.

○○○ stated in the original judgment that “A” in the facts charged (A) and (B) as indicated in the facts charged at the court below, the Defendant would have brought about the consistency of the statement, such as (a) and (b) that “A” in the facts charged, which is the place indicated in (a) and (b) that “A” in the hotel J, which is the place indicated in the facts charged, stated that C had a penphone administered with P, not with the Defendant, but with C himself. However, the Defendant would have brought about again.

C argues that the Defendant and the EX traded several occasions in the original trial court, the Defendant did not specifically state matters such as the month or season, place, price, volume of each purchase indicated in the facts charged, repeated and formally, and the decision of the purchase, the process of the purchase, and the use and disposal of the purchased narcotics.

O C informed the Defendant, who was under investigation and judgment due to the suspicion of philophone medication, transaction, etc., of the purchase of philophone and X-ray from the Defendant, who was the 'balon line'. The act of making the upper line charged to an investigation agency by clarifying the 'balon line' under the sentencing guidelines for narcotics crimes can be evaluated as 'important investigation cooperation', which is a special mitigation factor, and therefore C has an interest in sentencing following the Defendant’s statement.

(2) Next, there is evidence that is consistent with the following [the point of selling psychotropic drugs to L], and there is a prosecutor’s office and court’s statement of the purchaser, and in light of the following circumstances known by the record, the content of the statement 1 is difficult to recognize acid.

L’s statements from the Defendant, ○ 3 times of phiphonephones and 4 times of posters, etc., are not real evidence, such as financial transactions supporting this, monetary records, etc.

On September 4, 2014, L was sentenced to a suspended sentence of two years for a violation of the Act on the Control of Narcotics, Etc. by Handphone medication at the Seoul Central District Court. On September 24, 2014, L was sentenced to a suspended sentence of two years. On September 24, 2014, L was present at the prosecutor's office and was investigated for other suspicions of purchasing C, Q, and acquired phiphones administered like the previous criminal facts, "part of L was given five g of philopon from the person who is the United States, S, and was given five g of philopon from the person who is the U.S. on July 2013, 201." After that, on the second prosecutor's statement, Defendant CF photographing at around 2012, and Defendant CF photograph at the local level, and Defendant CFE at around 37, 2013.

As to the background leading up to the reversal of the statement as above, L made a false statement because the defendant was friendly and several times, and I want to protect the marriage. However, L made a statement to the effect that "I would like to change the life in the case of additional cases other than the previous punished." However, L has already made a first statement to the prosecutor's office at around September 2012 that "I would like to administer an X-mail with the defendant." After that statement was made by the prosecutor's office at the second statement, I stated that "The X-gu administered with the defendant at the time of the second statement by the prosecutor's office was brought by the defendant." On the same day, I stated that L was not the U.S., who was the defendant, but the defendant was the defendant, who was not the first time of the second statement that provided the penphones, and it is not clear whether L actually suffers from a change in the heart or if so, what is the opportunity for the decision.

C L asserts that the Defendant had transacted and X-mail traded several times in the original trial court, but the detailed matters as stated in the facts charged, such as the month, place, price, volume of purchase repeatedly and formally, which are the approximate time of the provisional purchase, and the decision of the purchase price, the circumstances leading to the purchase, and the use of the narcotics purchased, etc., are considerably different from the body of the statement. L has an interest in sentencing following the Defendant’s statement in sentencing. L, in the situation where the investigation was being conducted on suspicion of the c, Q, etc., the c, the c, the c, inc, the c, inc, the purchase of the penphone and X-mail, was additionally stated by the Defendant, who is the c, the c, the c, in the situation where the investigation was conducted on suspicion of the c, the c, inc, and the c, the c, inc, the c, in the sentencing guidelines for the narcotics crime, can be evaluated as the c, a special mitigation.

In light of the evidence duly adopted and examined by the court below, C, L, P, etc. are very closely related to the defendant at each time and time indicated in the facts charged, and there is a fact that there was a record of punishment several times due to the sale and purchase of each psychotropic drug, medication, etc., but there is a possibility that the defendant may deny the facts charged for the purpose of hiding a person who provided a phiphone to the defendant, etc., it cannot be denied that the defendant is suspected that C and L are not selling phiphones and X posters as indicated in the facts charged.

However, the court below, along with the circumstances revealed by the court below, stated that the witness C and L were lawfully admitted and investigated by the court below, and that the defendant purchased phiphones and X posters from the defendant, who is a "sc and L," a "sc and L," and there is no prosecution or punishment for these suspected facts. C and L are sufficiently likely to make a false statement for the purpose of appeal to the prosecutor's office, and it is not possible to exclude the possibility of purchasing phiphones and Xers from other persons than the defendant.O L was written from the prosecutor's office, from the person who is not the U.S., ‘R', ‘S', and the fact that 'R' was written, but the defendant stated that the defendant was the defendant, who was punished as a crime of violation of the Narcotics Control Act, and there is no room to view that the defendant was a reasonable 'exponor' and 'exponor' as a "exponor', and there is no possibility that the defendant had sold 'exponor' as above.

3. As to the administration of each psychotropic drug in the judgment below

A. Points of medication of each psychotropic drug at an O hotel;

(1) Summary of this part of the facts charged (Articles 2-A and 2-2-A of the facts charged, No. 2014, 3136, and Article 1 of the facts charged, No. 107)

From September 201 to October 201 of the same year, the Defendant, along with C, U, P, etc., administered 1 psychotropic drugs at each of the psychotropic drugs together with water at the 0 hotel strike room in Songpa-gu Seoul. (B) around September 2012, the Defendant administered the EX P, which the Defendant had with C, L, and P, with water at the above 0 hotel strike room, in a way that the EXP was administered together with water.

(2) The judgment of the court below

According to the evidence adopted by the lower court, including the statements in C, L, P, U's prosecutor's office and the court below's decision, the lower court held that the Defendant was accommodated in the 0 hotel strike room with C, U, P, etc. on September through October of the same year. At that time, C, P, and U administered the 0 hotel room; the Defendant was accommodated in the said hotel strike room with C, L, P, etc. on September of 201, and the Defendant was accommodated in the said hotel strike room with C, L, P, etc. on September of 2012. However, this part of the facts charged for the following reasons is recognized.

It was determined that there was no room for proof.

(A) As to what date and time it was indicated in this part of the facts charged, each protocol of examination of witnesses to C, L, P, and U, stating that they were administered together with the Defendant. However, both L, P and U stated in the original court that they would have been administered at the time, but they did not use the X-how when they want to take food, it was not deemed that the Defendant used the EX, and that there was no memory. However, on the second trial date of the original court, C did not take the same effect as that of the Defendant’s first statement that it was difficult for the Defendant to take the 0th public prosecutor’s office to take advantage of the fact that the 10th public prosecutorial police officer stated that the 10th public prosecutorial office was administered. However, on the same date, the 10th public prosecutorial office stated that the 10th public prosecutorial office did not take advantage of the fact that the EX was administered. However, the 10th public prosecutorial office’s first statement on the 10th public prosecutorial office.

(B) The defendant asserts that there is a debate about drinking alcohol with other daily activities in hotel strike, but there is no difference between the time and place indicated in the facts charged, and that there is no other objective evidence as to the fact that the defendant administered an X-how at the same time and time as indicated in the facts charged. In this case where there is only a statement of the daily behavior that the defendant provided an X-how, there is no objective evidence as to the fact that the defendant provided an X-how, the fact that the defendant provided a medication at the same time and time and time as indicated in the facts charged, and there is no reason to recognize the fact that the defendant provided a medication at the same time and time, and whether the other person provided a medication is actually administered, as long as it appears that the content itself is reasonable and credibility, each original three court statement to the effect that the above statement to the effect that the defendant provided a medication at the time and time, as seen above, has no reason to recognize the fact that part of other participants were administered at the time of the defendant's behavior, and that there is no reason to recognize the defendant's temporary medication.

(3) Judgment of the court below

In light of the evidence duly adopted and examined by the court below, the defendant was accommodated in the hotel strike with C, U, P, etc. on or around September 201 through October 201 of the same year, and the defendant was found to have been accommodated in the above hotel strike with C, L, P, etc. on or around September 2012, and the defendant's assertion that the defendant was accommodated in the above hotel strike is insufficient to reverse the fact-finding.

Furthermore, in addition to the above facts admitted, in light of the following circumstances recognized by the court below after considering the evidence duly adopted and examined, it is reasonable to view that the defendant administered an X-mail as stated in this part of the facts charged, and the judgment below erred by misunderstanding the facts and adversely affecting the conclusion of the judgment.

OC, L, P, and U's statements are generally consistent and consistent with each other in the part where "the defendant administered an X-gu, along with them." The mere fact that the statement on the minor matters, such as other medication conditions, is somewhat inconsistent, does not unreasonably deny the credibility of the statement without permission, and it should not be rejected without permission, unless there is any separate evidence to deem that there is no credibility from an objective point of view.

○ The Defendant also made a statement to the effect that “When playing in the same club or hotel strike room, almost every other person has administered, or had been prior to the administration of, X posters or phiphones, and all all the people can see the fact that the act is administered by reporting to the effect that the act is performed in the case of a flac act that administers X posters or phiphonephones.” However, in light of the characteristics of the crime of administering psychotropic drugs, etc., there is no reason to see that the Defendant is administered together at the hotel strike unless the narcotics such as C, P, and U are administered, and as a matter of course, the Defendant also deemed to have administered X posters as a behavior of the Defendant at the time of the act of the Defendant, and the Defendant also deemed to have been administered at that time.” It cannot be said that each statement to the effect that all X posters is certain to have been administered in the atmosphere at that time.”

(b) Points of medication of psychotropic drugs at a hotel;

(1) Summary of this part of the facts charged (Article 2-2 of the facts charged)

From November 2012 to December 2012, the Defendant administered the medication in the way of taking one thing together with water at the hotel ‘J' in Gangnam-gu Seoul Metropolitan Government H, and at the same time, at the X-gu from the end of November 2012 to the end of December.

(2) The judgment of the court below

The court below determined that there is no reasonable evidence to prove consistency in the facts charged solely on the following grounds: (a) P only stated that "C was administered together with C when it went to the above temporary border/ hotel ‘J' at the prosecution; (b) C was administered with C, and there was Defendant, L, etc. at the same time; (c) it was coming to any place; and (d) there was no clear statement in the prosecutor's office or the court of the original trial as to where the Defendant appeared to administer narcotics, etc.; (b) there was no evidence directly corresponding to this part of the facts charged; (c) the prosecutor stated that "C was administered with X at the time of "the defendant was administered with Xter at the time; (d) there was no specific statement about the contents of witness, such as its administration or situation; and (e) in the court of the original trial, the defendant stated that "the defendant was administered with X, not with Xter at the time of the administration; and (e) there was no evidence to prove consistency in this part of the facts charged as above."

(3) Judgment of the court below

In full view of all the evidence submitted by the prosecutor, it is insufficient to recognize this part of the facts charged without any reasonable doubt. Thus, the above judgment of the court below is just and it does not seem that there was a mistake of mistake of facts.

4. Conclusion

Therefore, since there is no reason to appeal by the prosecutor on the remainder of the judgment of the court below except for each psychotropic drug medication at a hotel, it is dismissed in accordance with Article 364(4) of the Criminal Procedure Act. Since the prosecutor's appeal on each psychotropic drug medication at a hotel among the judgment of the court below is well-grounded, it is reversed in accordance with Article 364(6) of the Criminal Procedure Act,

【Discretionary Judgment】

Criminal facts

As seen earlier, the summary of the facts charged described in subparagraph (a)(1) is as follows.

Summary of Evidence

1. Partial statement of each prosecutor's protocol of examination of the accused against the accused (including the substitute part);

1. Each legal statement made in part of L/C as witness of the political party;

1. The written statement of the witness C, P, L and U in the trial records of the court below 2, 3, 4, 6, 7 times, 1. C and P in part of each prosecutor's protocol of the court below

1. Some statements made by each prosecutor of the suspect examination protocol against L, P or U;

Application of Acts and Subordinate Statutes)

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

Articles 60(1)2, 4(1)1, and 2 subparag. 3(b) of the Criminal Act on the Control of Narcotics, Etc.

1. Aggravation for concurrent crimes;

In light of the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act’s reasons for sentencing, and Article 38(1)2 and Article 50 of the same Act’s crime related to narcotics, etc. is highly likely to cause severe social harm and harm social safety due to toxicity of narcotics, etc. as well as the need for punishment as well as the Defendant had already been punished for the suspended sentence due to the medication, but has repeated the same crime during the suspended sentence. On the other hand, the Defendant did not know that the Defendant had already been punished for the suspended sentence due to the medication and repeated the same crime during the suspended sentence. On the other hand, the Defendant’s age, environment, and conditions after the crime, etc. are considered as follows.

2. Final judge

Judges Tae-tae

Judges Shin Jin-hun

1) Since each X-the-counter dose administered by the defendant cannot be confiscated, its value shall be additionally collected in accordance with the proviso of Article 67 of the Narcotics Control Act.

It shall not be additionally collected because there is no data to calculate the value thereof.