(영문) 서울중앙지방법원 2017.10.11. 선고 2017고합817 판결

Two divers (No. 10), one divers (No. 11) used in seizure, and one divers (No. 11) used in the use of phiphones, respectively, shall be confiscated from the accused.

439,000 won shall be additionally collected from the defendant.

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

Reasons

Criminal facts

【Criminal Power】

On January 29, 2016, the Defendant sentenced the Suwon District Court to two years and two months of imprisonment for a violation of the Act on the Control of Narcotics, Etc., and completed the execution of the said sentence in the official prison on April 28, 2017.

【Criminal Facts】

Despite the fact that the Defendant is not a narcotics handler, he dealt with the psychotropic drugs such as Metropists (hereinafter referred to as 'philophones') and marijuana as follows:

1. Sale and purchase of phiphones;

On May 2017, the Defendant decided to trade philophones by selling and collecting narcotics, etc. in name, through the "C" at around 20:00 on the lower-hand 20:00, and then, the Defendant placed about 600,000 won in cash at the bottom of the toilet change in the Busan-gu D address at the same place after 10 minutes, and found about 2 g of phiphones at the same time.

Accordingly, the defendant purchased philophones.

2. Receipt of Handphones;

On July 27, 2017, at around 20:40, the Defendant granted G free of charge a transparent vinyl free of charge containing 0.02g written phone in front of the F hotel in Jongno-gu Seoul, and in front of the street around the F hotel.

Accordingly, the defendant accepted philophones.

3. Medication of phiphones.

A. On July 27, 2017, at around 19:00, the Defendant: (a) made the instant “F hotel” 608, using two raw water branches as soon as possible; (b) set up a philophone smoking machine using two philophones; and (c) injected the smoke as soon as possible by heating the fluence in a gambling place.

B. At around 22:00 on the same day, the Defendant put approximately 0.03g of philophones into a single-use injection machine and dilution with water at the above place, and injected to his left arms blood cells.

Accordingly, the Defendant administered philophones over twice.

4. Sale and purchase of marijuana;

The Defendant, at around 20:00 on July 2017, attached a bag containing 100,000 won in cash to the toilet changeer located in the Busan J in J in order to find out an influent marijuana after about 10 minutes.

Accordingly, the defendant purchased marijuana.

5. Smoking in marijuana.

On July 27, 2017, the Defendant, at around 20:00, laid the hemp plant of the size of the stop and inhaled it by heating fire on the pipe made by the gambling ground from 608 to 608.

Accordingly, the Defendant smoked marijuana.

6. Possession of penphones or marijuana;

On July 28, 2017, the Defendant, around 18:30 on July 28, 2017, included five transparent vinyl 901, containing approximately 0.84 ghon-phones, and two transparent vinyl 0.75g, containing approximately 0.75g of marijuana, was placed in the Defendant’s wallets and bags.

Accordingly, the defendant possessed philophones and marijuana.

Summary of Evidence

1. Defendant's legal statement;

1. A copy of the protocol of interrogation of the police officer G;

1. A general list of seized articles, records of seizure, results of a prosecutorial investigation on a minor and simple trial, table of requests for appraisal (2017-H-15478), table of requests for appraisal (2017-H-15477), report on investigation (Evidence Nos. 27);

1. Previous convictions in judgment: Investigative report (Evidence List Nos. 21), personal confinement status, methods of acceptance by individuals [2015 order 85,4586], text of judgment, and criminal records;

Application of Statutes

1. Article applicable to criminal facts;

Articles 60(1)2, 4(1)1, and 2 subparag. 3(b) (the purchase, receipt, medication, and possession of oponon notes), Article 59(1)7, and Article 3 subparag. 7 (the purchase of marijuana) of the Narcotics Control Act, Article 61(1)4 (a), and Article 3 subparag. 10 (a) of the Narcotics Control Act, Article 61(1)4 (b) and Article 3 subparag. 10 (b) of the Narcotics Control Act, Article 61(1)4 (b) and Article 3 subparag. 10 (the possession of marijuana) of the Narcotics Control Act.

1. Commercial competition;

Articles 40 and 50 of the Criminal Act (the punishment for the violation of the Act on the Control of Narcotics, etc. (fence) and the violation of the Act on the Control of Narcotics, etc. (fence) due to possession of mariphones, and the punishment for the violation of the Act on the Control of Narcotics, etc. (frighting) due to possession

1. Selection of punishment;

Each Act on the Control of Narcotics, etc. (flavoring) and each Act on the Control of Narcotics, etc. (flavoring) shall be punished by imprisonment with prison labor for marijuana

1. Aggravation for repeated crimes;

Articles 35 and proviso of Article 42 of the Criminal Act

1. Aggravation for concurrent crimes;

Articles 37 (former part of Article 37, Articles 38 (1) 2 and 50 of the Criminal Act [Concurrent Crimes within the scope of the proviso of Article 42 of the Criminal Act concerning the Control of Narcotics, etc. (referring to the Crimes of Bribery due to the Purchase of Cannabis with the largest punishment)]

1. Confiscation;

The main sentence of Article 67 of the Narcotics Control Act

1. Additional collection:

The proviso of Article 67 of the Narcotics Control Act

[추징금의 산정] 439,000원[= 필로폰 2g 매수금액 600,000원 - 압수된 필로폰 0.84g 252,000원(= 600,000원 × 0.84g / 2g) + 대마 매수금액 100,000원 - 압수된 대마 0.75g 9,000원(= 대마 1그램당 국내 암거래 가격 12,000원 × 0.75g | 1그램)]

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Reasons for sentencing

1. The scope of applicable sentences by law: Imprisonment for one year to 50 years; and

2. The scope of recommendations on the sentencing criteria: The sentencing criteria shall not apply to the crimes of violation of the Act on the Control of Narcotics, etc. (fence) due to the possession of phiphones and the crimes of violation of the Act on the Control of Narcotics, etc. (majus) due to the possession of marijuana, since the crimes of violation of the Act on the Control of Narcotics, etc. (majus) due to the commercial competition relationship: Provided, That

Determination of ○ Type: Type 2 (mariju, flabb, item (c), etc.) such as assistance in the trade of narcotics.

○ Special serious factors: Criminal records of the same kind (not more than a three-year grace period);

○ Scope of Recommendations: Imprisonment of up to 6 months to 4 years (up to 10 years);

3. Determination of sentence: Imprisonment for 2 years; and

The crime related to narcotics, such as the crime of this case, is not only to avoid the body and mind of an individual, but also to harm the national health or to cause another crime due to toxicity and sacrificing, etc., which has a great degree of harm and injury to society as well as to cause another crime; the defendant was sentenced to a crime of violation of the Act on the Control of Narcotics, etc. (fence) and was sentenced to a punishment for the violation of the Act on the Control of Narcotics, etc.; thus, the defendant again committed the crime of this case during the period of repeated crime; the defendant had a number of criminal records including the same records; the defendant has led to the confession of the crime of this case; the defendant all of the crimes of this case; the defendant has led to his mistake, and the defendant's age, character and behavior, environment, family relationship, the process and method of the crime of this case