(영문) 서울중앙지방법원 2018.8.17. 선고 2018고합458 판결

Seized evidence Nos. 1 through 7, 9, 10, 12 through 14, 27 through 30, 33 through 56, and 58 of the same evidence shall be confiscated from the defendant respectively.

1,950,000 won shall be additionally collected from the defendant.

To order the defendant to pay the amount equivalent to the above additional charges.

Reasons

Criminal facts

The defendant is not a person handling narcotics.

1. Cultivation of marijuana;

On April 17, 2018, the Defendant cultivated 8 hemps by installing 3, 3, 3, 3, 3, and 4, from the large bank of Soyang-gu, Goyang-gu, Youngyang-gu, and 301.

2. Possession of marijuana;

around April 17, 2018, the Defendant stored approximately 145.53g and approximately 109.96g (including the weight of each plastic bag) in a plastic bag and possessed marijuana for the purpose of sale.

3. Sale of marijuana;

On March 9, 2018, the Defendant received KRW 1,950,000 in cash in Gangnam-gu Seoul from “F” located in Gangnam-gu Seoul, and sold approximately 30g of marijuana to G.

Summary of Evidence

1. Defendant's legal statement;

1. A copy of each protocol of suspect examination of the police in G;

1. Seizure record (No. 231 pages of investigation record);

1. A statement on narcotics appraisal (the number of pages 420 of investigation records);

1. Investigation report (a hemp cultivation book or set-off investigation that is found at a hemp cultivation place), and the hemp book accompanying it, a copy of the set, a criminal investigation report (a photograph related to marijuana discovered at a portable phone), and a cellular phone photograph attached thereto;

1. Photographss of seized articles and cellular phone hosting photographs;

1. Copies of any photograph of any G seized material and each copy of any photograph of each G mobile phone;

Application of Statutes

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

Narcotics Control Act (hereafter in Articles 61(1)6 and 4(1)2 (hereafter in Articles 61(1)6 and 61(2), 59(1)7 and 3 subparag. 7 of the Narcotics Control Act (hereafter in Articles 61(1)6 and 4(1)2)

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (the aggravation of concurrent crimes with punishment prescribed in the Act on the Control of Narcotics, etc. (the Act on the Control of Narcotics, etc.) due to the trade of marijuana with the largest punishment and

1. Confiscation;

The main sentence of Article 67 of the Narcotics Control Act

[A public prosecutor is seeking the confiscation of a pipe seized for marijuana (No. 57). However, in order to sentence confiscation or collection as prescribed in Article 67 of the Narcotics Control Act, the requirements for confiscation or collection should be related to the facts charged. As such, the court cannot render a sentence of confiscation or collection as to the facts not recognized in the crime (see, e.g., Supreme Court Decision 2016Do16170, Dec. 15, 2016). The above marijuana pipe is a thing used for smoking marijuana, and is not related to the facts charged above, and thus, does not sentence confiscation of the above article).

1. Additional collection:

The proviso of Article 67 of the Narcotics Control Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act provides reasons for sentencing; 1. The scope of applicable sentences by law: Imprisonment with prison labor for one year to 45 years;

2. Scope of recommendations according to the sentencing criteria;

(a) Basic crimes and concurrent crimes (the sale and purchase of marijuana and possession of it for the purpose of sale and purchase);

[Determination of Types] Trade Assistance, etc. in Trade of Narcotics> No. 2 (mariju, fab, item (b), (c), etc.) (Special Convicts)

[Recommendation and Scope of Recommendation] Basic Field, Imprisonment with labor for one year to two years

(b) Concurrent crimes;

[Determination of Types] 2: Medication, simple possession, etc. of narcotics (e.g., marijuana, flavoring, d. and (e)) (Special flavoring) (a person) shall not be punished.

[Scope of Recommendation] Basic Field, 8 months of imprisonment to 1 year and 6 months. The final scope of sentence due to the aggravation of multiple offenses

From 1 to 3 years of imprisonment;

3. Determination of sentence;

Although the Defendant acknowledges all of his criminal acts as a primary offender with no criminal history, and later repents them later, the crimes involving narcotics are not only destroying the physical and mental health of a medication person, but also causing serious adverse effects to the society as a whole, and it is difficult to detect them due to its characteristics, and thus, in order to protect our society and its members, there is a need to strictly cope with the crime of narcotics, etc. in order to protect the society and its members. The Defendant directly cultivates marijuana equipped with specialized facilities for the purpose of obtaining economic benefits, and possessed or sold them for sale, etc., and led the entire process from the production to the distribution of marijuana; the amount of marijuana cultivated and possessed by the Defendant is not large; therefore, there is a need to close the strictness of the law of the Defendant through treatment inside the facility; the Defendant’s age, character and behavior, occupation, environment, family relation, etc. shall be determined as per the order.