[1] Whether the price, etc. received in return for the sale of narcotics shall be subject to the necessary confiscation and collection under Article 67 of the Act on the Control of Narcotics, Etc. (affirmative), and in a case where the defendant who handles narcotics has acquired the profits from an additional crime using the narcotics, whether the above profits are subject to the additional collection separately from the value of the narcotics, etc. itself (affirmative)

[2] The legal nature of confiscation and collection under Article 67 of the Act on the Control of Narcotics, Etc. (=a disposition of a disciplinary nature) and the scope of collection under the above provision where there are several persons who committed the crime

[3] The case reversing the judgment of the court below that ordered the collection of the total amount of the above revenue to some of the defendants who were prosecuted for violation of the Narcotics Control Act on the ground that there was an error of law in misunderstanding the legal principles as to the collection of additional revenue on the ground that the court below ordered the collection of additional revenue to some defendants who did not participate in the additional crime related to the occurrence of revenue

[1] In the event that narcotics are sold to others, the proceeds, etc. received in return for the sale shall be confiscated as necessary from the criminal act under Article 67 of the Act on the Control of Narcotics, Etc., and if confiscation is impossible, the equivalent value thereof shall be collected. Meanwhile, Article 67 of the same Act provides that "narcotics, facilities, equipment, funds, or means of transport provided for the crime under this Act and proceeds therefrom shall be confiscated: Provided, That if confiscation is impossible, the equivalent value thereof shall be collected." Thus, if the defendant who handled narcotics has obtained the proceeds from additional criminal acts using them, the above proceeds shall also be collected separately from the value of the narcotics, etc. itself or the funds for the crime.

[2] Confiscation or collection under Article 67 of the Act on the Control of Narcotics, Etc. is a disposition of punitive nature, not aimed at deprivation of profits from a criminal act, and thus, even if the defendant did not gain profits from the criminal act, the court shall order the collection of the equivalent value, and if there are many persons who committed the crime, the equivalent value shall be ordered to collect the equivalent value of the narcotics within the scope they handled. However, since the above legal principle applies to a case where the identity of the subject of collection is recognized due to the additional crime related to narcotics, etc., where the above proceeds become subject to collection separate from the narcotics themselves, etc., it cannot be ordered to collect the equivalent value of the equivalent value of the narcotics, etc., until the defendant who did not participate in the crime related to the occurrence

[3] In a case where the defendants were indicted for violation of the Act on the Control of Narcotics, Etc. by importing, administering, purchasing, or delivering phiphones into the Republic of Korea, the case reversing the judgment of the court below that ordered the collection of the total amount of the profits to some defendants who did not participate in the additional crime related to the occurrence of profits on the ground that there was an error of law in the misapprehension of legal principles as to the collection of additional collection, and again decided on the grounds that the court below ordered the collection of the total amount of profits to some defendants who did not participate in the additional crime related to the occurrence of

[1] Article 67 of the Act on the Control of Narcotics, etc. / [2] Article 67 of the Act on the Control of Narcotics, etc. / [3] Article 30 of the Criminal Act, Article 42 of the former Criminal Act (amended by Act No. 10259 of April 15, 2010), Article 2 subparagraph 4 (b), Article 4 (1), Article 58 (1) 6, Article 60 (1) 3, and Article 67 of the Criminal Procedure Act, Article 368 of the Criminal Procedure Act

[1] [2] Supreme Court Decision 2001Do5158 Decided December 28, 2001 (Gong2002Sang, 440) Supreme Court Decision 2010Do7251 Decided August 26, 2010 (Gong2010Ha, 1852) / [1] Supreme Court Decision 96Do397 Decided March 14, 1997 (Gong197Sang, 1160) / [2] Supreme Court Decision 2000Do546 Decided September 8, 200 (Gong200Ha, 2164)

Defendant 1 and three others

Defendants and Prosecutor

Madern

Attorneys Park Jong-chul et al.

Incheon District Court Decision 2010Gohap493, 601 Decided December 9, 2010

The judgment of the court below is reversed.

Defendant 1 shall be punished by imprisonment for a term of two years and six months, by imprisonment for a term of eight months, by imprisonment for a term of ten months, by a term of defendant 3, by a term of defendant 7-A (1) through (4), by a term of imprisonment for a term of one year, by a term of one year, and by a fine of three thousand won,00,000 won for a term of any of the crimes of Article 7-A (5) of the judgment of the court below.

When Defendant 4 fails to pay the above fine, the above defendant shall be confined in a workhouse for the period calculated by converting 50,000 won into one day.

However, with respect to Defendant 2, the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.

Defendant 2 shall be put on probation and shall be ordered to take a 40-hour course of pharmacologic treatment.

A disposable injection machine 19 (No. 1) containing a seized philophone whitee, and a verification-receiving machine (No. 2) concealing a philophone shall be confiscated from Defendant 2.

Each of the Defendants’ KRW 1,142,857 from Defendants 1,168,57,570 from Defendants 1,2, and 3, and KRW 5,584,287 from Defendants 1, and 3, respectively, KRW 4,157,143 from Defendants 2, 3, and 4, and KRW 1,314,286 from Defendant 1 shall be collected respectively.

1. Summary of grounds for appeal;

A. Defendant 1

(1) misunderstanding of facts

Defendant 1 in collusion with the co-defendant 1, Nonindicted 1, and Defendant 3 of the lower judgment, there was no fact that Defendant 1 imported 70 g of philopon from China.

(2) Unreasonable sentencing

In light of the various favorable circumstances that are favorable to Defendant 1, such as the confession of the facts charged other than the smuggling importation of philopon, the confession of the facts charged, the fact that there is no criminal record of the same kind, and there is a family member to support, etc., the punishment imposed by the court below (two years and six months of imprisonment and additional collection 7,895,714 won) is too unreasonable.

B. Defendants 2, 3, and 4 (Feng-type and Undue Practices)

Defendant 2, 3, and 4 were sentenced to imprisonment for the instant crime, two years and six months for Defendant 3, economic difficulties of the said Defendants, and family relations, etc. In light of the various circumstances favorable to the said Defendants, the lower court’s sentence (Defendant 2: imprisonment for August, probation, probation, 40 hours, confiscation, additional collection, 6, 468,570 won, Defendant 3: imprisonment for one year and six months, additional collection, KRW 7,895,714, and KRW 3,000,000, and KRW 5,300,000, and KRW 4,000) is too unreasonable (Defendant 2’s additional collection charges).

(c) An inspection;

When comprehensively taking account of the fact that Defendant 1 does not have a large amount of philophones imported by Defendant 1, and the case is very serious by selling and administering philophones, the risk of committing a crime is large, the crime is committed without being familiar with the period of repeated crime, and the crime is denied with regard to philophones smuggling, and there is no degree of unfolding, etc., the punishment imposed by the court below on Defendant 1 is unfair.

2. Ex officio determination

A. Determination on collection

(1) The judgment of the court below

The lower court determined as follows, with respect to the collection of the additional collection of the remaining 5.27g philophones, other than the 14.73g philophones seized by Defendant 2, among the 70g philophones sealed by Defendant 1, 3, etc.

(A) Defendant 1 and 3: The amount to be collected by applying the smuggling import price (g, KRW 142,857 perg, but less than KRW 1; hereinafter the same shall apply) from China

(B) Defendant 2 and 4: Determination of the amount to be collected as a penalty by applying the actual selling price (g. 662,500 won per g) of phiphones (However, for phiphones delivered or administered by Defendant 2 without compensation, smuggling import price shall apply)

(C) As to the amount overlapping among the amount of additional collection calculated by each of the Defendants (Defendant 1, 3: 7,895, 714 won, Defendant 2:6,468,570 won, Defendant 4:5,300,000 won, each of them shall be additionally collected.

(2) The judgment of this Court

(A) In the event that narcotics are sold to others, the proceeds, etc. received in return for the sale shall be confiscated as necessary from the criminal act as stipulated in Article 67 of the Act on the Control of Narcotics, Etc., and if confiscation is impossible, the equivalent value shall be collected (see Supreme Court Decision 2010Do7251, Aug. 26, 2010, etc.).

Meanwhile, Article 67 of the Act on the Control of Narcotics, Etc. provides that "narcotics, facilities, equipment, funds or means of transport provided for any crime as prescribed by this Act and profits therefrom shall be confiscated: Provided, That if they cannot be confiscated, the value thereof shall be collected."

Therefore, in a case where a series of acts by the defendant who handled narcotics, etc. occurred, the profits shall be collected separately (see Supreme Court Decision 96Do397, Mar. 14, 1997). The purport of the above legal principle is that “ even if a series of acts by the defendant who handled the same narcotics constitute a separate crime, it shall be ordered to collect the total amount of the values of the drugs within the scope he handled by the defendant based on the defendant, and it shall not be required to collect the equivalent value separately for each such act.” However, the above legal principle is applicable to cases where the defendant's act of delivering or administering narcotics, etc. he acquired without compensation and is still limited to cases where narcotics, etc. are still subject to confiscation or collection, and it cannot be applied as it

According to the evidence duly admitted and examined by the court below, the following facts are acknowledged: ① Defendant 1 and 3 conspired to sell 4.8g out of 70 oponphones imported in China to Nonindicted 2,00,000 won; ② Defendant 2 and 3 conspired to sell 8g out of 70 oponphones to Defendant 4; ③ sold 2,300,000 won in total to Defendant 2,30,000 won in total among 8 oponphones purchased from Defendant 2; ③ sold 2.1g out of oponphones purchased from Defendant 2,30,000 won to Nonindicted 3 or Nonindicted 4; ④ Defendant 1,3, and 4 acquired profits, respectively, as described in paragraph (c) through the aforementioned transactions.

Therefore, the lower court should calculate the additional collection charges against Defendant 1, 3, and 4, separately from the value of the penphone itself or the proceeds from the crime, and include them as subject to additional collection. In so doing, the lower court erred by misapprehending the legal doctrine on the necessary additional collection under Article 67 of the Narcotics Control Act.

(B) As confiscation or collection under Article 67 of the Act on the Control of Narcotics, Etc. is not aimed at deprivation of profits through a criminal act, but rather is a disposition of punitive nature, even if a person has not acquired profits from the criminal act, the court shall order the collection of the equivalent value, and if there are many persons who have committed the crime, the court shall order the collection of the equivalent value within the scope they handled (see Supreme Court Decision 2010Do7251, Aug. 26, 2010, etc.).

However, the above legal principle applies to cases where the identity of the subject of collection is recognized. Thus, in a case where separate revenues from the narcotics themselves accrue due to the crime related to narcotics, etc., and the proceeds therefrom become subject to additional collection, it cannot be ordered to collect the full amount of the proceeds from the Defendant, who did not participate in the crime related to the occurrence of the proceeds, or the overlapping relation cannot be acknowledged (for example, if Defendant A sold the 1g of the penphone to Defendant B, and Defendant B sold them to Defendant C in KRW 2,000,000,000, respectively, the remaining 1,000,000 won should be collected from Defendant B and Defendant C, and the remaining 1,00,000 won should be collected from each of Defendant B and Defendant C (the purchase price of KRW 2,00,000 between Defendant B and C).

Thus, the court below ordered Defendant 2 and 3 to collect 5,300,000 won from all the Defendants, including Defendant 1, in relation to the crime of selling 8g of phiphones to Defendant 4 in aggregate, including Defendant 1, in relation to the crime of selling 5,30,000 won of phiphones, for the crime of having Defendant 1, who is not related to the above phiphones trading, bear the responsibility for velative solidarity up to the crime proceeds exceeding the value of 8g of phiphones (tight revenues).

(C) The amount of additional collection

If the above error of the court below is corrected and the amount to be collected by the Defendants is calculated, it is as follows.

1) Defendant 1: 9,210,000 won (amount recognized as original trial: 7,895,714);

(1) Value of an unregistered penphone 55.27g: 7,895,714 won (i.e., 10,000,000 won x 55.27g x total amount of 70g gramphones sealed (the collection of additional charges by Defendant 3 and each of them, Defendant 2 and Defendant 4 to the extent that they were involved)

② Net profit from the sale of 4.8g philopon: 1,314,286 won [=2,00,000 won - 685,714 won (i.e., 10,000 won x 4.8g x the total amount of spopon x 70g x 4.8g x the total amount of spopon x 70g)] / [Defendant 1]

2) Defendant 2: 6,468,570 won (amount recognized as original trial: 6,468,570 won)

1. 8 Handphones sold to Defendant 4: 5,300,000 won

○ The value of 8g philophones: 1,142,857 won (i.e., 10,000,000 won x 8g x the total quantity of clophones ±70g) (Defendant 1, 3, 4 and each additional collection)

○ The remainder 4,157,143 won (the amount in excess of the value of philopon) [Defendant 3, 4 and additional collection (the collection is not to be made because Defendant 1 did not participate in the sale)];

② The value of 8.13g philophones delivered free of charge: 1,161,428 won (i.e., 10,000,000 won x 8.13g x total quantity of philophones sealed 70g) (The collection of additional tax by Defendants 1, 3 and 1)

(3) Value of 0.05 g a ponononcon administered: 7,142 won (i.e., 10,000,000 won x 0.05 g x the total quantity of a ponconcon ± 70g) (the collection by Defendant 1, 3 and each person)

3) Defendant 3: 12,052,857 won (the amount recognized as original trial: 7,895,714 won)

(1) Value of unclaimed 55.27 g philophones: 7,895,714 (i.e., 10,000 won x 55.27g x total amount of 70g philophones which are classified as follows: (i) Defendant 1 and each one respectively, and (ii) Defendant 2 and 4 are collected for each of them to the extent that they were involved)

② Net profit from the sale of 8g philophones: 4,157,143 won [ = 5,300,00 won for the sale of 8g - 1,142,857 won for the smuggling importation of 8g (=10,00,000 won for the smuggling importation of 10,000,000 x 8g ± total quantity of 8g gram 70g for the combined penphone importation) (Defendant 2,4 and each collection)

4) Defendant 4: 6,208,750 won (amount recognized as original trial: 5,300,000 won)

(1) Funds for purchasing 8g philophones: 5,300,000 won (per 1,142,857 won per the value of 8g philophones shall be additionally collected from Defendant 1,2,3 and the remainder of 4,157,143 won shall be additionally collected from Defendant 2,3 and each of them)

② Net profit from the sale of 2.1g Handphones: 908,750 won (=sale of 2.1g sold from among 8g Handphones subject to collection: 2,300,000 won - 2.1g - purchase price of 1,391,250 won (=sale price of 5,300,000 x 2.1g ± 8g) (Additional collection from Defendant 4)

(D) Sub-committee

As seen above, the judgment of the court below is erroneous in the misapprehension of the legal principles as to collection, which affected the conclusion of the judgment, and thus, it cannot be upheld (However, in the case of Defendant 2 and Defendant 4, the part against Defendant 4 cannot be modified more disadvantageously than the judgment of the court below. Thus, the court below's order should not be examined individually and formally, but the severity of the punishment should be determined by considering overall and substantial aspects (see Supreme Court en banc Decision 97Do1716, Mar. 26, 1998, etc.). In the case of Defendant 3, as seen earlier, since the main sentence is reduced from 1 year and 6 months to 10 months, even if the amount of collection is increased, it cannot be viewed as a violation of the principle of prohibition of disadvantageous alteration. Moreover, in the case of Defendant 2 and 4, since the court below's error concerning the overlapping relation, which was recognized by the court below, is merely a violation of the principle of prohibition of disadvantageous alteration.)

Although there is such a ground for ex officio reversal, Defendant 1's assertion of mistake is still subject to a party member's judgment, so it is judged in paragraph 3.

B. Determination as to Defendant 3’s concurrent crimes under the latter part of Article 37 of the Criminal Act

According to each of the original rulings and a copy of each decision (No. 39-1 through 3 of the evidence list No. 201 of the Incheon District Court Decision No. 2010, 601), Defendant 3 was prosecuted on charges of having been sentenced to imprisonment on July 15, 2010, 120g in total, and 120g philopon on January 21, 2010, 200, 20 five times from October 2009 to February 201, 30, Incheon District Court Decision No. 2010, 250, and 2000, respectively. However, Defendant 201 was sentenced to the Seoul High Court Decision No. 2015, Feb. 16, 2010; however, Defendant 2010 was declared to have been dismissed on June 21, 2015.

According to the above facts, since the crime of violation of the Act on the Control of Narcotics, etc. and each of the crimes of this case, for which judgment has become final and conclusive, are concurrent crimes under the latter part of Article 37 of the Criminal Act, the punishment should be determined after considering equity and the mitigation or exemption of punishment pursuant to Article 39(1) of the Criminal Act.

In this respect, the part against Defendant 3 among the judgment below can no longer be maintained.

3. Judgment on Defendant 1’s assertion of mistake of facts

A. In the case of co-offenders who act in collusion with more than two persons, the conspiracy does not require any legal punishment, but is sufficient if there is an implicit intent or contact with each other on the joint execution of the crime directly or indirectly (see Supreme Court Decision 2005Do2014, Sept. 9, 2005, etc.). As long as such conspiracy was made, even those who did not directly participate in the act of conspiracy are held liable for the other co-principal's act (see Supreme Court Decision 2009Do13868, Apr. 29, 2010, etc.).

B. The court below held that, in full view of the following facts: (a) Defendant 3’s statement in the investigative agency and the court are consistent and concrete; (b) Defendant 1’s statement in the investigative agency and the investigative agency of the court of the court below conforms to the part corresponding to Defendant 3’s statement; (c) Defendant 1 was not at the time of gathering the crime of smuggling import; (d) Defendant 1 was under investigation by the investigative agency and made a statement to the effect that Nonindicted 2 was informed about the entry of Defendant 3; and (e) Defendant 1 stated that Defendant 3 was sent to the co-defendant 1 of the court below after hearing the statement to the effect that Defendant 3 was able to sell the phone when the investigation agency made a statement to the effect that Defendant 1 was able to sell the phone in the face of the phone; and (e) Defendant 1 stated that Defendant 3 was also able to recognize the fact that Defendant 1 participated in the crime of smuggling import.

According to the evidence duly adopted and examined by the court below, although Defendant 1 did not play a direct role in the smuggling import activities, such as raising the funds for phiphones, it appears that Defendant 1 did not play a direct role in the smuggling import activities itself. However, in full view of the above circumstances that the court below properly mentioned, Defendant 1 committed the crime of smuggling in collusion with Defendant 1 and Nonindicted 1 in collusion with Defendant 3, and Defendant 1 committed the crime of smuggling in this case when Defendant 3 possessed phiphones and entered China to Korea.

4. Conclusion

The judgment of the court below is without merit. The judgment of the court below is reversed without examining the defendants' assertion of unfair sentencing and the prosecutor's assertion of unfair sentencing as to Defendant 1. The judgment of the court below is reversed, and it is again decided as follows through pleading.

The summary of this evidence and the facts of the crime recognized by the court are 10 to 10.6 times in the judgment of the court, 10 to 20.6 times in the above 10th century, 10 to 20.6 times in the above 10th century, 200 to 10 years in the imprisonment with prison labor for the obstruction of performance of official duties, etc. at the Incheon District Court on April 27, 2004, 204 to 4 years in the imprisonment with prison labor for a short term of 3 years in the same court on December 3, 204, 200 after the above judgment became final and conclusive on April 12, 205, 10 to 20 years in the order of 10 to 20 years in the above 10th day in the imprisonment with prison labor for the violation of the Punishment of Violence, etc. Act (the above 10th day in the second day in the second day in the second day in the second day in the second day in the second day in the second day in the second day in order.).

1. Relevant Article of the Act and the choice of punishment for the crime;

A. Defendant 1: Articles 58(1)6, 4(1), and 2 subparag. 4(b) of the Act on the Control of Narcotics, Etc.; Article 30 of the Criminal Act [the importation of philophones; the choice of limited imprisonment: Provided, That the upper limit of punishment shall be 15 years as stipulated in the main sentence of Article 42 of the former Criminal Act (amended by Act No. 10259, Apr. 15, 201; hereinafter the same shall apply]; Articles 60(1)3 and 4(1) and 2 subparag. 4(b) of the Act on the Control of Narcotics, etc. (3-B) of the Act on the Control of Narcotics, etc.; Article 30 of the Criminal Act shall be added to the crimes of Article 30 of the Criminal Act; the delivery, sale, medication, and receipt of philophones; and the choice of each imprisonment)

B. Defendant 2: Articles 60(1)3, 4(1), and 2 subparag. 4(b) of the Act on the Control of Narcotics, Etc. (in the case of each crime set forth in Article 2 of the Act on the Control of Narcotics, etc., Article 30 of the Criminal Act shall be added, each of the crimes set forth in Article 30 of the Criminal Act shall be sold, possessed, delivered, or administered

C. Defendant 3: Articles 58(1)6, 4(1), and 2 subparag. 4(b) of the Act on the Control of Narcotics, Etc., Article 30 of the Criminal Act (the importation of philophones, the choice of limited imprisonment, however, the maximum punishment shall be 15 years as stipulated in the main sentence of Article 42 of the former Criminal Act), Articles 60(1)3, 4(1), and 2 subparag. 4(b) of the Act on the Control of Narcotics, etc., Article 30 of the Criminal Act (the fact of selling and carrying of philophones, the selection of each sentence)

(d) Defendant 4: Articles 60(1)3, 4(1), and 2 subparag. 4(b) of the Act on the Control of Narcotics, Etc. (the purchase, delivery, medication, and sale of each penphone, and the crime of violation of the Act on the Control of Narcotics, etc. as prescribed in Article 7-A. 5(5) of the holding, shall be punished by a fine, and the remaining crimes shall be punished by imprisonment with prison labor for each crime)

1. Aggravation of repeated crimes (defendants 1 and 3);

Article 35 of each Criminal Code (However, in the case of violation of the Act on the Control of Narcotics, etc. from Handphone Import, within the limit of the proviso of Article 42 of the former Criminal Code)

1. Statutory mitigation (Defendant 3);

Articles 52(1) and 55(1)3 of the Criminal Act (Self-denunciation)

1. Handling concurrent crimes (defendants 3 and 4);

A. Defendant 3: The latter part of Articles 37 and 39(1) of the Criminal Act (trade between each crime and each violation of the Act on the Control of Narcotics, etc., for which the judgment becomes final and conclusive) and the statutory mitigation in accordance with the latter part of the same paragraph

B. Defendant 4: The latter part of Article 37 and the main sentence of Article 39(1) of the Criminal Act (the former part of Article 7-1(5) of the Act on the Control of Narcotics, Etc. and the former part of Article 39(1) of the Criminal Act (the former part of Article 7-1(5) of the Act

1. Aggravation of concurrent crimes;

A. Defendant 1: the punishment prescribed in the former part of Article 37, Articles 38(1)2 and 50 of the Criminal Act (a)

(b) Defendant 2: the aggravated punishment for concurrent crimes as provided for in the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act [the aggravated punishment for concurrent crimes resulting from the violation of the Act on the Control of Narcotics, etc. due to the Sale of Handphones as provided for in subparagraph (2)]

(c) Defendant 3: the former part of Article 37, Articles 38(1)2, and 50 of the Criminal Act (an aggravated punishment as provided for in the Act on the Control of Narcotics, etc. due to the Import of Handphones with the largest punishment)

(d) Defendant 4: The punishment provided for in the former part of Article 37, Articles 38(1)2 and 3, and 50 of the Criminal Act (the aggravated punishment provided for in Article 7-1(5) of the Act on the Control of Narcotics, Etc., except for the crime of violation of the Act on the Control of Narcotics, etc., as provided for in subparagraph (5) of Article 7-A of the Act on the Control of Narcotics, etc., due to the purchase of phiphones as provided for in subparagraph (2) of Article 7 of the Criminal Act)

1. Discretionary mitigation (Defendant 1, 3);

Articles 53 and 55 (1) 3 of the Criminal Code (see, e.g., favorable circumstances, etc., for the reasons for sentencing below)

1. Detention in a workhouse (Defendant 4);

Articles 70 and 69(2) of the Criminal Act

1. Suspension of execution (Defendant 2);

Article 62(1) of the Criminal Act (Consideration of favorable Circumstances, etc. among the Reasons for Sentencing below)

1. Probation and order to attend the course (Defendant 2);

Article 62-2 (1) and main sentence of Article 62-2 (2) of the Criminal Act

1. Confiscation (Defendant 2);

The main sentence of Article 67 of the Narcotics Control Act

1. Additional collection:

Each proviso to Article 67 of the Narcotics Control Act

1. Defendant 1

Defendant 1, in collusion with Defendant 3, etc., imported phiphones into the Republic of Korea and administered them, and distributed part of phiphones imported into the Republic of Korea through several times, including selling and delivering them to a third party. Considering the fact that the amount of sealed phiphones is not large, the social harm and injury of the crime is large, and the crime of this case is committed again without being aware of it even during the period of repeated crimes, the responsibility for the crime of this case is very heavy.

However, among the instant crimes, Defendant 3 led to the instant crime, Defendant 1 was passively involved in the crime, Defendant 1 did not have any profit gained by Defendant 1, and Defendant 1 did not have the same criminal record. Considering the favorable circumstances for Defendant 1, Defendant 1’s character and conduct, family environment, motive for the instant crime, and circumstances after the instant crime, etc., the punishment shall be determined as ordered by taking into account all the sentencing factors indicated in the instant pleadings, including the character and conduct of Defendant 1, the family environment, and the motive for the instant crime, and the circumstances after the instant crime.

2. Defendant 2

Defendant 2 is not only administering part of the penphones imported by Defendant 3, etc., but also distributing them to a third party through multiple times, such as selling and delivering them to the third party.

However, Defendant 2 committed the crime of selling and delivering phiphones according to the direction of Defendant 3, who is the husband, and committed the crime of selling and delivering phiphones, the fact that there is no particular criminal records other than two times of fines, and his mistake is divided in depth, etc., taking this into consideration in favorable circumstances to Defendant 2. In addition, considering all sentencing factors indicated in the argument of this case, such as Defendant 2’s character and conduct, family environment, etc., the punishment as set forth in the order shall be

3. Defendant 3

Considering the fact that Defendant 3 led to the instant crime of smuggling import, and the fact that Defendant 2, the wife, under being detained in other narcotics-related crimes, ordered Defendant 2 to sell and deliver the smuggling imported to a third party, and distributed the penphones, the amount of smuggling imported is not large, the social harm and injury of the crime is large, and the repeated crime is committed again without being aware of it even during the period of repeated crime.

However, the crime of this case was revealed by Defendant 3 himself to the investigative agency, and actively cooperate in the investigation while disclosing the identity of the person related to the crime in the course of the investigation. In particular, Defendant 3 was sentenced to imprisonment with prison labor of 120 g philophones, selling, and administering the crime of this case on February 15, 2011, and the above judgment became final and conclusive on February 15, 2011. It is necessary to consider sufficient cases and equity with regard to the crime of this case and each of the above crimes at the same time, and it is necessary to take into account circumstances favorable to Defendant 3, such as the fact that his mistake is divided in depth. In addition, all of the sentencing factors described in the arguments of this case, including Defendant 3’s character, conduct, family environment, motive for the crime of this case, and circumstances after the crime, etc., shall be determined as ordered by the text.

4. Defendant 4

Defendant 4 purchased a penphone from Defendant 2 on a multiple occasions and distributed it to a third party, such as selling and delivering part of the phone. The crime of this case is a serious crime committed by Defendant 4, considering that Defendant 4 was sentenced to a suspended sentence of three years for each of the above crimes and was committed immediately after the judgment became final and conclusive, taking into account the following: (a) Defendant 4 was sentenced to a suspended sentence of three years for each of the above crimes; and (b) Defendant 4 was subject to a large possibility of criticism.

However, in light of the circumstances favorable to Defendant 4, such as the fact that Defendant 4 had no criminal record of punishment, the fact that his mistake is divided in depth, and the invalidation of the suspended sentence is excessively harsh liability compared to Defendant 4’s criminal liability, etc., taking into account the circumstances favorable to Defendant 4, and taking into account all factors of sentencing as shown in the arguments of this case, including Defendant 4’s character and conduct, family environment, and the motive and circumstances after the crime of this case, etc., the punishment shall be determined as per Disposition, by comprehensively taking into account

Judges Maximum Pung (Presiding Judge)