2018Gohap137 Violation of the Narcotics Control Act (narcotics)

2018Gohap246 (Joint) Residence, Intrusion, Injury, or concealment of property

A

Kim Jong-sung, Heung-hun (criminals) and Dominary (public trial)

Attorney B (Korean National Assembly)

July 11, 2018

A defendant shall be punished by imprisonment for not less than two years and six months.

However, the execution of the above sentence shall be suspended for 3 years from the date of the final judgment. To order the defendant to be put on probation for 2 years, community service for 200 hours, and drug therapy for 40 hours.

1,000,000 won shall be additionally collected from the defendant.

The amount equivalent to the above additional collection charge shall be ordered to be paid provisionally.

Criminal History "2018 Gohap137,

Despite the fact that the Defendant is not a narcotics handler, the Defendant treated the following narcotics as a cocar:

1. Sale and purchase of coaches;

A. On October 2016, between 21:00 to 21:30,00, the Defendant purchased 2 g kccars from E and FO in the “D” coffee shop located in Gangnam-gu Seoul Metropolitan Government.

B. At around 23:30 on December 2016, the Defendant purchased KRW 500,000,000 from E and F from the elevator side of “H” H located in Gangnam-gu Seoul, Seoul.

2. Use of coaches;

A. At around 23:00 on the same day, the Defendant used the elevator side of the elevator "H" in the elevator side of the elevator of "H" in a manner that inhales cocars of one half of the motos by using the car as soon as possible.

B. On December 2016, 2016, around 01:00, the Defendant used cocars in the same manner as above at the same place as the above A.

C. On December 2016, 2016, around 04:00, the Defendant used cocars in the same manner as above at the same place as the above paragraph (a).

“2018 Gohap246, 1)

1. Intrusion upon residence;

On November 10, 2017, the Defendant: (a) around 17:50 on November 17, 2017, at the victim J (Inn, 28 years of age) that was a relationship with a building 604 in Gangnam-gu Seoul, Seoul; (b) was divided into the front door; (c) and (d) the victim was aware of the fact that he was a contact officer, who opened the front door and intrudes on the victim’s residence through the front door.

2. Injury;

At the date and time set forth in Paragraph 1, the Defendant inflicted injury on the victim by plucking, plucking, plucking, etc. the victim’s fingers, which require treatment for about two weeks, such as dump and fingers, dump and other parts of the victim’s dump, dump, tension, etc. in order to hold his cellular phone in his hand and to cut off the Defendant’s cell phone.

3. Concealment of property;

The Defendant concealed one of the aforementioned mobile phones owned by the victim by carrying out the cell phone of the victim who has been deducted from the date and place specified in paragraph (1) in the same manner as described in paragraph (2) and throw away it from an insular place.

Summary of Evidence

"2018 Gohap137"

1. Defendant's legal statement;

1. A copy of each police interrogation protocol concerning E or F;

1. Police seizure protocol and list of seizure [the 12,13 No. 12, 13], narcotics appraisal statement (the 26 No. 26), Seoul Central District Court Decision 2017Gohap232 (the 29 No. 29) 2018Gohap246;

1. Partial statement of the defendant;

1. Legal statement of the witness K and J;

1. A protocol of examination of part of the defendant by prosecution;

1. Each police suspect interrogation protocol against J;

1. Written Statement;

1. Report (finite) on the occurrence of a crime (finite 1), CCTV image CD (finite 3), criminal paper (finite 4), and each L photograph (f in order 6, 22);

1. A medical certificate of injury (number 7), and a photograph of the upper part of the body (number 8);

Application of Statutes

1. Relevant provisions of the Act on the Control of Narcotics, Etc. and the choice of a punishment for the crime are as follows: Article 58 (1) 1, Article 4 (1) 1, subparagraph 2 (d) of Article 2 and Article 60 (1) 1, Article 3 subparagraph 1, and subparagraph 2 (d) of Article 2 of the Act on the Control of Narcotics, Etc. and Article 60 (1) 1, Article 3 subparagraph 1, and Article 2 subparagraph 2 (d) of Article 2 of the Act on the Control of Narcotics, Etc. and Article 319 (1) of the Criminal Act; Article 319 (1) of the Criminal Act; Article 257 (1) of the Criminal Act; Article 366 of the Criminal Act;

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act and Article 50 of the Criminal Act concerning concurrent crimes with punishment prescribed in the Act on the Control of Narcotics, etc. (Narcotic Drugs) due to the purchase and sale of cocoin on December 2016, 201)

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following consideration for the reasons for sentencing):

1. Suspension of execution;

Article 62(1) of the Criminal Act (The following grounds for sentencing has been repeatedly taken into consideration for favorable circumstances)

1. Probation and order to attend a lecture or order to provide community service;

Article 62-2 of the Criminal Act, Article 59 of the Act on Probation, etc.

1. Additional collection:

The proviso to Article 67 of the Narcotics Control Act / [Calculation of Additional Imposition] 1,000,000 won (total purchase price for each cocar under paragraph (1) of the crime of No. 2018, 137 at the time of sale)

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

The defendant and defense counsel's assertion

1. Of the facts charged in the instant case, as to intrusion upon residence

A. Summary of the assertion

On November 11, 2017, the date of the occurrence of the instant case, the Defendant visited the Defendant’s house on November 11, 2017, but was aware that he brought about the Defendant’s cell phone, and visited the Defendant’s house to find his cell phone. The Defendant was aware that he visited the Defendant’s cell phone, and that he did not intrude the Defendant’s house.

B. Determination

Comprehensively taking account of the following circumstances acknowledged by the evidence duly adopted and examined by the court, the defendant and the defense counsel are not allowed to accept this part of the defendant's defense counsel, as stated in the crime No. 2018 Gohap246, the defendant's defense counsel's defense against the victim's will.

1) The victim prepared a written statement to the effect that "the defendant entered the house with strong pressure" was divided into levels immediately after the occurrence of the instant case, and that "the defendant was forced to enter the house" (the 4 pages of the investigation record), and that when the police first conducted an investigation, "the defendant was aware that the victim was living in the beginning of the victim's dwelling area," but the defendant stated that "the defendant tried to cut off the cell phone used by the victim from the outside of the entrance door to the opening of the cell with the opening of the cell (the 14 pages of the investigation record)," and in this court, she tried to write off the door door to the front line of the victim's dwelling, but the defendant opened a slick door and made a statement to the victim's cell (the 4 pages of the investigation record) with his intention to close the door, but the victim made a statement to the police officer "the victim's cell phone's signature" (the 5th page of this case) with his statement "the victim's signature was written to the victim."

2) The credibility of the victim’s statement concerning this part of the facts charged is recognized in full view of the consistency and physical strength of the victim’s statement as above, and the statement by K, consistent with the facts of the victim’s residential intrusion.

2. As to the injury of the facts charged of the instant case

A. Summary of the assertion

Until the defendant found his cell phone that the victim left to the office of the defendant's officetels security room, the victim only claimed the victim's cell phone and received it from the victim, and there was no injury to the victim. At the time of the occurrence of the case, the victim did not appeal to the certificate of the part in arms at the time of the occurrence of the case, and the injury diagnosis report to the victim was issued after the lapse of three days from the date of the occurrence of the case, and the result of the injury did not occur or the causal relation between the defendant's act and the result of the injury cannot be acknowledged.

B. Determination

Comprehensively taking account of the following facts and circumstances acknowledged by the evidence duly adopted and examined by this court, the Defendant, in the course of cutting off a cell phone from the victim’s cell phone, had physical force on the part of the victim, such as the victim’s fingers, and the victim may fully recognize the fact that the victim suffered bodily injury on the part, such as fingers and fingers. Accordingly, the Defendant and the defense counsel cannot accept this part of the claim.

1) 피해자는 피고인으로부터 휴대폰을 빼앗겼고, 그 과정에서 피고인이 피해자의 손목을 꺾었다고 증언하였으며(증인 J 녹취서 1, 3쪽), 이 사건 발생 당시 현장에 출동하였던 경찰관 K도 현장에서 피해자로부터 피고인이 휴대폰을 빼앗았고, 그 과정에서 피해자의 손목을 꺾었다는 사실을 직접 들었다고 증언하였다(증인 K 녹취서 3쪽). 위와 같은 진술 내용에 더하여 피해자가 자신의 집에서 맨발로 편의점까지 나온 점(증인K 녹취서 1쪽), 피고인이 얼굴에 손톱으로 할퀸 상처를 입은 점(증인 K 녹취서 2쪽. 수사기록 93쪽) 등 위와 같이 피고인과 피해자 사이에 물리력을 동반한 다툼이 있었던 것으로 추측되는 사정들을 종합하면, 피고인이 피해자로부터 휴대폰을 건네받은 것이 아니라 피해자로부터 휴대폰을 강제로 빼앗은 사실을 인정할 수 있다.

2) The Defendant asserts that “the victim would return his mobile phone when finding the mobile phone,” and that the victim gave his own mobile phone to the Defendant. However, when the Defendant makes the first statement in the police, he stated that the victim was taken off the victim’s cell phone at the 1st floor of the victim’s house (in the event of the first statement in the police, 60 pages). The Defendant stated that the CCTV installed in the victim’s officetel was taken off before the victim’s house, such as the victim’s house, which was confirmed (in the 65th page of investigation record), and that the prosecutor reversed the victim’s statement that he was taken off the cell phone before the victim’s house (in the 93th page of investigation record), and it is difficult to recognize the credibility of the statement by the Defendant [The interrogation protocol prepared by the judicial police assistant is inadmissible as long as the Defendant denies its contents, but it is not admissible, but it is also possible to use the Defendant’s mobile phone as counter evidence to impeachment the victim’s mobile phone’s statement at the court (see, 2013rd, 2013th of the victim’s mobile phone).

3) As seen earlier, if the Defendant forced the victim to cut off a mobile phone from the victim, it can be sufficiently inferred that the victim’s strong force was likely to inflict injury on the victim’s fingers or fingers, etc. resistanceed during the process. It is confirmed that the victim’s fingers and fingers were red themselves on the victim’s fingers and fingers (i.e., the 38 pages of the investigation record). Furthermore, there may be cases where the victim’s sons and fingers were unlikely to be accurately aware of the degree of pains or injury due to the fear of the victim’s sons and fingers and interesting psychological conditions at the time of the occurrence of the instant case. Considering the following day of the instant case, the day following the instant case is Saturday and on Sundays, it is difficult to dismiss the probative value of the victim’s fingers and fingers on November 13, 2017, solely on the basis that the victim’s fingers and fingers were issued with the diagnosis of injury on the part.

1. Reasons for sentencing: Imprisonment with prison labor for a period of two years and six months from June to June 22;

2. Application of the sentencing criteria;

(a) Crimes of violation of the Act on the Control of Narcotics, etc. (narcotics) through the sale of cocars;

[Determination of Types 3] Trading, arranging, etc. for Narcotics (narcotics, Gaol A. Record, etc.)

[Special Sentencing ] Purchase for Simple Possession of Medications, etc.

[Scope of Recommendation] Imprisonment of 2 years and 6 months to 5 years (Mitigation)

(b) Crimes of violation of the Act on the Control of Narcotics, etc. (narcotics) by using cocars;

[Determination of Types 4] Simple possession, etc. of Medications (Narcotic drugs, perfumea, etc.)

【Special Convicted Person】

[Scope of Recommendation] One year to Three years (Basic Area) of imprisonment; Violation of Residence: Non-application of Sentencing Criteria (Disestablishment of Sentencing Criteria)

(d) Crimes of injury;

[Determination of Type] General Injury to Violence Crimes (General Injury)

[Special Convicted Persons] Minor Bodily Injury (Mitigations)

[Scope of Recommendation] Imprisonment from 2 months to 1 year (Reduction Area)

(e) Concealment of property;

[Determination of types] General Criteria for Damage Offenses. Type 1 (Destruction of Property, etc.)

【Special Convicted Person】

[Scope of Recommendation] Imprisonment from April to October (Basic Area)

(f) Scope of recommendations according to the guidelines for handling multiple crimes;

Sentence of imprisonment between June and June 8, 200 [ = 5 years + (5 years X1/2) + (3 years X 1/3]] 3. Sentence of imprisonment: 2 years and 6 years and 3 years of suspended execution.

Considering the characteristics of narcotics-related crimes, it is not easy to detect and avoid the body and mind of an individual, as well as that it may cause harm to the national health or another crime. In addition, the Defendant, contrary to the intent of the victim who was related to personal relations, without permission, entered the victim’s residence, suffered bodily injury in the process of cutting off the victim’s cell phone, and concealed the cell phone, and did not completely recover from the damage, and the attitude of considerable reflection toward the crime committed against the victim cannot be seen. Considering the above circumstances, the Defendant need to be punished strictly.

However, the fact that the defendant recognized his mistake and reflects his depth with respect to the crime related to narcotics, that he purchased cocar for the purpose of his use, not for the purpose of circulation during the market, that the defendant did not have any particular criminal record except for the same criminal record related to narcotics and has been sentenced once, and that the degree of injury to the victim is relatively heavy, etc. are favorable to the defendant.

In addition to the above circumstances, considering the motive, means and result of the crime, the defendant's age, occupation, character and conduct, family relationship, the balance between the level of punishment and the level of punishment already taken place with respect to E and F, who sold his cocars to the defendant and E and F, the court shall be sentenced to imprisonment with prison labor as stated in the order and suspend the execution of the sentence. The court shall order probation, community service, and pharmacologic to which special matters to be observed are imposed for proper treatment, edification, and prevention of recidivism.

The senior judge of the presiding judge;

Judge Lee Sang-hoon

Judges Park Il-young

1) Facts obtained through the examination of evidence without the amendment of indictment to the extent that the facts charged do not disadvantage the defendant's exercise of his/her right to defense

Pursuant to this section, some correction or correction was made.