Requirements for punishing a person who imports substances designated and announced as temporary psychotropic drugs under Article 58(1)3 of the Narcotics Control Act;

In full view of the structure and legal principles of Article 2 subparag. 3, Articles 3 subparag. 5, 4(1), 5(3), 5-2(1), (2), (4), and (5), 41, 47, 58(1)1, 3, 6, and 7, 59(1)10, and 60(1)3(a) of the Narcotics Control Act (hereinafter referred to as the “Act”), as well as the purpose of the temporary narcotics designation system; the purpose of the temporary narcotics designation system; the temporary psychotropic drugs falling under Article 2 subparag. 3(a) of the Act or the psychotropic drugs containing such psychotropic drugs (hereinafter referred to as “temporary psychotropic drugs”) and the substantial difference between them, it is reasonable to consider that it is necessary to handle and control temporary psychotropic drugs equivalent to those psychotropic drugs and interpret Article 5(1)3(a) to temporarily designate and publicly notify the person who violated Article 3(5) and (3) of the Act to whom the said provision applies mutatis mutandis.

Therefore, Article 58 (1) 3 of the Act can be applied to temporary psychotropic drugs, as in the case of the psychotropic drugs referred to in item (a), if they functioned in the mid-to long-term system, are misused or abused, or are highly likely to depend on severe physical or mental dependence, and if there is no proof of the requirements, it may not be punished pursuant to the above provision.

Article 12(1) of the Constitution of the Republic of Korea; Article 1(1) of the Criminal Act; Article 2 subparag. 3, Article 3 subparag. 5, Articles 4(1), 5(3), 5-2(1), (2), (4), (5), 41, 47, 58(1)1, 3, 6, 7, 59(1)10, and 60(1)3 of the Narcotics Control Act; Article 31(2) and (3) of the Pharmaceutical Affairs Act

Defendant

Prosecutor

Seoul High Court Decision 2015No1725 decided July 27, 2015

The appeal is dismissed.

The grounds of appeal are examined.

1. (a) Article 2 subparag. 3 of the Narcotics Control Act (hereinafter “Act”) provides that “Psychotropic drugs mean any of the following items, which affect the human central defense and, in the event of misuse or abuse, may cause serious harm to the human body, as determined by the Presidential Decree.” Article 2 subparag. 3 of the Act provides that “The degree of misuse or abuse of psychotropic drugs, whether they are used for medical treatment, their scope, stability, and the degree of physical or mental dependence, shall be classified into four categories, depending on the degree of misuse or abuse, whether they are used for medical treatment, and the definition is classified into four categories

Among the psychotropic drugs, Article 2 subparagraph 3 (a) (a) (hereinafter referred to as "a) of the Act (hereinafter referred to as "each item of this Article") means "drugs or substances containing them, which might be abused or abused, are not used for medical treatment, are lacking safety, and are misused or abused, causing severe physical or psychological dependence," and they are distinct from the psychotropic drugs under items (b) through (d) of subparagraph 3 of Article 2 of the Act. Article 3 subparag. 5 of the Act is distinguishable from the psychotropic drugs of items (a) (hereinafter referred to as "psychotropic drugs under item (a) (a) (hereinafter referred to as "psychotropic drugs"), which fall under the above sub-paragraph (a) (hereinafter referred to as "non-psychotropic drugs") and other psychotropic drugs, and thus are likely to possess, possess, use, control, manufacture, trade, arrange for trade, or give or receive them.

B. Meanwhile, when the above Act was amended by Act No. 10786, Jun. 7, 2011, the designation procedure for the registration of narcotics, etc. is complicated, the physical and mental dependence, and the risks of the abuse and abuse of new narcotics requires considerable period of time to designate the designation as narcotics when the harm caused by the new narcotics, etc. occurs, and the new type narcotics have already been distributed, and there is a problem that the control basis is prepared after the spread of distribution as narcotics. As for the substances that are likely to cause harm to the public health due to the abuse and abuse of narcotics, the designation procedure for temporary narcotics, etc. was newly established so as to strengthen the national health safety by promptly blocking them even before the mental and physical dependence is discovered.

Accordingly, the Minister of Food and Drug Safety may designate a drug that has obtained permission for items or has reported items pursuant to the Pharmaceutical Affairs Act as temporary narcotics, etc., and a substance that is deemed necessary to be handled and managed urgently due to potential misuse or abuse of narcotics, etc., other than narcotics, etc., such as non-narcotics substances, drug substances, preparations, products, etc., as temporary narcotics. In such cases, temporary narcotics, temporary psychotropic drugs or temporary marijuana should be classified and designated, and the grounds for designation, designation period, etc. should be publicly announced (Article 5-2(1) and (2) of the Act).

In addition, when designating temporary narcotics as temporary narcotics, any person is prohibited from growing, possessing, possessing, using, transporting, managing, importing, exporting, manufacturing, preparing, medication, trading, arranging the transaction of, giving or receiving, storing, or providing them, or issuing a prescription stating such designation (Article 5-2(4) of the Act). Furthermore, Article 3, which is a general prohibition provision of acts, shall apply mutatis mutandis to the handling and disposal of narcotics, etc., and Articles 5(3), 41, and 47, which provide for the authority of the Minister of Food and Drug Safety to prohibit and restrict the importation, sale, inspection, collection, seizure, etc. (Article 5-2(5) of the Act).

C. However, with respect to punishment for acts violating the Prohibition Regulations on Psychotropic Drugs and Provisional Psychotropic Drugs, the Act differently provides for the following.

First of all, there is a separate penal provision in accordance with the types of materials, etc. prescribed in the items of subparagraph 3 of Article 2 of the Act with respect to psychotropic drugs, and there is a substantial difference in each statutory punishment with respect to the act of violating the prohibition of export or import. Of these, the act of exporting or importing the psychotropic drugs under items (a) and (b) shall be punished by imprisonment with prison labor for life or for not less than five years (Article 58(1)3 and 6, subparagraph 5 of Article 3, Article 4(1) and (c) of the Act, and the act of exporting or importing the psychotropic drugs under items (c) and (d) of Article 59(1) of the Act (Articles 10 and 4(1) of the Act), and Article 4(1) of the Act shall be punished by imprisonment with prison labor for not more than ten years or by a fine not exceeding 100 million won (Articles 60(1)3 and 4(1) of the Act).

On the other hand, with respect to temporary psychotropic drugs, Article 58(1)7 of the Act only provides for the punishment of a person who trades, gives or receives, prepares, administers, or provides temporary psychotropic drugs to minors, and does not provide a direct penal provision for an act violating the prohibition provisions, such as Article 5-2(4) of the Act. Instead, Article 58(1)1 of the Act provides that Article 3 of the Act includes cases where the general prohibition provisions on narcotics, etc. are applied mutatis mutandis to the handling, disposal, etc. of temporary psychotropic drugs pursuant to Article 5-2(5) of the Act, and Article 3 of the Act provides that the penal provision on psychotropic drugs shall also apply to temporary psychotropic drugs, etc. within the scope to which Article 3(1) applies mutatis mutandis. However, Article 3 of the Act provides for the purpose of prohibiting a specific act, such as possession, possession, export, and import, etc., of psychotropic drugs under subparagraph 5(a) and there is no separate provision on psychotropic drugs below item (b). As a result, the penal provision on psychotropic drugs subject to be punished.

D. Meanwhile, the proviso of Article 5-2(1) of the Pharmaceutical Affairs Act provides that drugs for which approval of items has been obtained or notification of items has been filed by the Minister of Food and Drug Safety pursuant to Article 31(2) and (3) of the same Act shall be excluded from those subject to designation of temporary narcotics, etc. In addition, since the nature of temporary psychotropic drugs does not correspond to substances, etc. used for medical purposes or can be used as such, it is not discovered whether temporary psychotropic drugs do not correspond to substances, etc. used for medical purposes or can be used as such, it may not be designated except for those specified under Article

However, it cannot be uniformly determined that all of the psychotropic drugs are equivalent to the psychotropic drugs referred to in item (a) above, the most addiction and risk of which are the highest among the psychotropic drugs. Nevertheless, applying penal provisions for the psychotropic drugs referred to in item (a) cannot be deemed to be in accord with the general principles of the Constitution, which ensure that punishment shall conform to appropriate proportionality to the nature and responsibility of the crime.

The general principle of the Constitution is that if a certain provision of the law can be applied as it is in the form of a sentence, it shall be interpreted in conformity with the Constitution for the formation of a uniform legal order with the highest norm, and the interpretation that may result in unconstitutional consequences should be considered while excluding the interpretation that may result in unconstitutional consequences (see, e.g., Supreme Court Decision 2004Do7488, Jan. 27, 2005).

E. In addition, the purport of the provision that a certain provision of a law shall apply mutatis mutandis to a specific matter, not to the effect that another provision concerning a specific matter is applied formally, but to the extent that it does not go against the content and nature of the rule, the application of the other provision shall be changed to the extent that it does not go against the contents and nature of the rule. In particular, in a case where the provision applicable mutatis mutandis is related to a penal provision, the interpretation shall be strict, and an extension or interpretation in the direction unfavorable to the defendant is in violation of the principle of no punishment without law and shall not be permitted (see Supreme Court Decisions 2003Do4158, Feb. 18, 2005; 2004Do7773, Oct. 19, 2006, etc.).

However, Article 58(1)7 of the Act on the Sale, etc. of Temporary psychotropic Drugs directly prescribes the object of the act subject to punishment as “temporary psychotropic drugs,” while Article 58(1)7 of the Act on the Sale, etc. of Minors provides that “temporary psychotropic drugs subject to punishment shall be classified as “temporary psychotropic drugs to which Article 3(5) applies mutatis mutandis pursuant to Article 5-2(5).” Thus, the interpretation of the relevant provision requires attention to the difference in the

On the other hand, as seen above, substances designated as temporary psychotropic drugs among psychotropic drugs should not be classified as equivalent to item (a) among psychotropic drugs. However, temporary psychotropic drugs are substances likely to cause harm to public health due to misuse or abuse, and their physical and mental dependence and risks are not yet identified yet. As such, psychotropic substances are not used for medical treatment among psychotropic substances, and are different from the psychotropic substances under item (a) which lacks safety and are likely to cause severe physical or mental dependence when misused or abused, and thus, their risk or certainty are different from those under item (a) that may cause serious physical or psychological dependence. Therefore, in applying the provisions concerning psychotropic substances under item (a) to temporary psychotropic drugs, these differences should be considered.

F. In full view of the regulatory structure and legal principles as seen above, as well as the purport of the temporary narcotics designation system, the substantial difference between the temporary psychotropic drugs and item (a) psychotropic drugs, it is reasonable to interpret that Article 3 prohibiting the general act by deeming that it is necessary to handle and control the temporary psychotropic drugs equivalent to the psychotropic drugs applies mutatis mutandis to the person who imports substances designated and publicly announced as temporary psychotropic drugs as well as that of Article 3 subparag. 5 of the Act on the psychotropic Drugs under item (a) to punish the person who imports substances designated and publicly announced as temporary psychotropic drugs as a violation of Article 58(1)3, which is imprisonment with prison labor for life or for not less than five years, should be interpreted as restricting that the temporary psychotropic drugs correspond to the psychotropic drugs under item (a)

Therefore, Article 58 (1) 3 of the Act can be applied to temporary psychotropic drugs, as in the case of the psychotropic drugs referred to in item (a), if they functioned in the mid-to long-term boundary, are misused or abused, or are highly likely to depend on severe physical or mental dependence, and if there is no proof of the requirements, it shall not be punished in accordance with the above provision.

2. According to the reasoning of the lower judgment and the record, the Minister of Food and Drug Safety, upon delegation of Article 5-2(1) of the Act, designated the effective period of temporary psychotropic drugs [Article 2 subparag. 3(a) of the Act] as temporary psychotropic drugs [Article 2 subparag. 3(a) of the Act] by setting the effective period as the temporary psychotropic drugs [Article 2 subparag. 3(a) of the Act] by setting the period of validity of which the Minister of Food and Drug Safety’s notification No. 2014-369 attached to the Ministry of Food and Drug Safety No. 1. 56 attached to December 11, 2014 (5) [limited to class 7, such as obuty nittrite listed in the “chemical” column; hereinafter “allegy nittrite”] by the period of validity as of June 10, 2017 (hereinafter “instant notification”). The grounds for designation can be seen as constituting structurally effective classification, i.e., expansion effect, and expansion of blood administration.

3. The lower court, based on the circumstances stated in its reasoning, concluded that it is difficult to readily conclude that the part of the evidence submitted by the prosecutor alone is a substance that lacks safety without using it for medical treatment, and that it is difficult to regard it as a substance equivalent to the psychotropic drug referred to in Article 2 subparag. 3(a) of the Act because it is difficult to deem that the Minister of Food and Drug Safety’s temporary psychotropic drug designation and public notice of the part that the Minister of Food and Drug Safety designates and publicly notifies the part that the Defendant used and imported the part that the Defendant used for the psychotropic drug referred to in Article 2 subparag. 3(a) of the Act beyond the scope delegated by the mother’s law to be invalid, on the ground that it goes beyond the scope delegated by the mother’s law, the part that the Defendant was prosecuted for a violation of Articles 59(1)5 and 58(1)3 of the Act, which does not constitute “cases where the crime is not committed” referred to in the former part of Article 325 of the Criminal Procedure Act (Article 58(1)3).

4. Examining the reasoning of the judgment below in light of the aforementioned legal principles, in order to punish an act of using or importing psychotropic drugs as a crime of violation of Article 59(1)5 and Article 58(1)3 of the Act, even if alvart was designated as a temporary psychotropic drug by the public notice of this case, it shall meet the requirements that the substance would act on the medium alvar boundary, and that there is a possibility of serious abuse and physical or mental dependence on, or at least, the level equivalent to, the psychotropic drugs.

However, examining the reasoning of the lower judgment in light of the record, we affirm the lower court’s fact-finding that it is difficult to readily conclude that alkylart is a substance that causes dependence by acting on the mid-to-mid system or a substance that lacks safety without being used for medical treatment, and it is difficult to view that the risk of misuse and abuse and physical and mental dependence are serious, and ultimately, there is no proof as to the above requirements.

Therefore, although there are some inappropriate parts at the time of the reasoning of the court below, the conclusion of the court below that acquitted the part of the charge that imported alkye, is just, and contrary to what is alleged in the grounds of appeal, the court below did not err by misapprehending the legal principles on the designation of temporary

On the other hand, the prosecutor appealed the entire judgment of the court below, but there is no indication of the grounds for appeal as to the guilty portion, and there is no statement of the grounds for appeal as to the grounds for appeal.

5. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)