Defendant 1 and one other

Defendants

West Dong-dong residents, national senior citizens (prosecutions), Kim Gyeong-Gyeong (Public trial)

Attorney Jung-il et al.

1. Supreme Court Decision 2018Da3705 Decided February 8, 2019 / 2. Do Government District Court Decision 2018Da2828, 2019Dadan306 (Joint) Decided July 12, 2019, 2018Dadan2828, 2019Dadan306 (Joint) and 2019 Godan365 (Joint), 2019 Godan1280 (Joint) and 2019 Godan2195 (Joint) Decided July 12, 2019

1. Defendant 1

All judgment of the court below shall be reversed.

A defendant shall be punished by imprisonment for a term of one year and eight months.

One paper to be buried in seized white paper (No. 3 of the 2018 District Prosecutors' Office No. 1823 of the 2018), five divers for single-use (No. 4 of the same evidence) shall be confiscated from the defendant.

300,000 won shall be additionally collected from the defendant.

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

2. Defendant 2

The guilty portion of the judgment of the court below in the second instance shall be reversed.

The defendant shall be innocent.

○ Defendant 1

1. Summary of grounds for appeal;

Each court below's punishment (the first instance court's punishment: 1 year and 2 months of imprisonment, confiscation, additional collection, and 2 years of imprisonment) is too unreasonable.

2. Ex officio determination

Prior to the judgment on the grounds for appeal by the defendant, the appeal case against the judgment of the court below was consolidated. Each of the offenses in the judgment of the court below against the defendant is concurrent offenses under the former part of Article 37 of the Criminal Act, and thus, a single sentence shall be imposed within the scope of the term of punishment, for which concurrent offenses are aggravated in accordance with Article 38(1) of the Criminal Act. Thus, all of the judgment of the court below shall be reversed.

3. Conclusion

The judgment of the court below is reversed in accordance with Article 364(2) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing, and the judgment of the court below is reversed, and it is again decided as follows through pleading.

The summary of the facts constituting the crime and the evidence recognized by this court is the same as the corresponding column of each judgment of the court below, and thus, they are quoted in accordance with Article 369 of the Criminal Procedure Act.

1. Article applicable to criminal facts;

Articles 60(1)2, 4(1)1, and 2 subparag. 3(b) (a) of the Narcotics Control Act, Article 262, 260(1), and 257(1)(a) of the Criminal Act (a person injured by assault)

1. Selection of punishment;

Each Imprisonment Selection

1. Aggravation for concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

1. Confiscation;

The main sentence of Article 67 of the Narcotics Control Act

1. Additional collection:

proviso to Article 67 of the Narcotics Control Act (100,000 won related to the administration of phiphones + 200,000 won related to the sale of phiphones, total 300,000 won)

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

The following circumstances revealed in the records of the instant case, including the Defendant’s age, character and conduct, environment, circumstances surrounding the crime, circumstances after the crime, and records of the crime, shall be determined as ordered by comprehensively taking into account all the factors revealed in the course of the pleadings of the instant case.

○ Unfavorable Circumstances: The Defendant was sentenced to two years of the suspension of the execution of one year by means of the purchase, medication, etc. of phiphonephones in 2016, and committed the instant crime during the suspension of the execution period. In particular, the Defendant committed an offense of selling phiphones to another person during the suspension period, with heavy liability, and the Defendant committed an serious injury to the victim 2 (Defendant of the judgment of the Supreme Court) by assaulting the victim 2 (Defendant of the judgment of the Supreme Court) without being aware of the fact that the Defendant was detained for the instant crime related

○ favorable circumstances: The confession of each of the crimes in this case; the victim Defendant 2 does not want the punishment of the defendant; the minor raisess and girls; cooperation in arresting narcotics offenders; and the criminal records related to philophones are only once, and there are no other criminal records.

○ Defendant 2

1. Facts charged;

On June 22, 2017, the Defendant was sentenced to one year of imprisonment with prison labor for a violation of the Act on the Control of Narcotics, Etc. at the Seoul Central District Court on December 20, 2017, and completed the execution of the said sentence in the Seoul East House on December 20 of the same year, and the said judgment was finalized on February 8, 2018.

(a) Dolphon medication - "2018 Highest 282";

The defendant is not a person handling narcotics, and the defendant shall not handle psychotropic drugs.

On March 12, 2018, the Defendant, from around 08:40 on March 13, 2018 to around 08:40 of the same month, administered phiphones once by inserting the volume of phiphones into a single-use injection machine and dilution with water into the Defendant’s arms.

(b) Psychotropic drugs possession - "2019 order306";

The defendant is not a person handling narcotics.

On January 12, 2018, at the guest room 205, located at ○○ City ( Address 1 omitted) around 12:30 on January 12, 2018, the Defendant: (a) placed psychotropic drugs in the Defendant’s clothes and carried psychotropic drugs, respectively, by placing them in the Defendant’s clothes 1stm.

2. The judgment of the court below

(a) Crimes of medication of phiphonephones;

The lower court rejected the Defendant’s assertion and found the Defendant guilty of this part of the facts charged on the following grounds.

The Defendant and his defense counsel testified to the effect that “The Defendant and his defense counsel were prosecuted due to the evidence secured through illegal seizure procedures (such as the seizure record, the result of simple trial and delivery, the drug appraisal report, etc.) by the police without a warrant of search, seizure and verification. However, the following circumstances acknowledged by the evidence duly adopted and investigated by the court are as follows: ① all the police who participated in the investigation process were present at the court as a witness to “when they were unable to collect urines, and they confirmed the Defendant’s will in their arbitrary submission or seizure process, and were collected in accordance with due process”; ② more military or police did not directly investigate the Defendant; and ② the mother of the Defendant and the mother of the Defendant, upon receiving the report in a dispute with the existing taxi rate, cannot be seen as being forced by the Defendant to have been present at the bar, and thus, the mother of the Defendant’s testimony cannot be seen as lawful; ③ the mother of the Defendant’s testimony that it was difficult for the Defendant to be present at the bar in the process of search and seizure.”

(b) Possession of psychotropic drugs;

The lower court rejected the Defendant’s assertion and found the Defendant guilty of this part of the charges on the grounds as delineated below.

Defendant and his defense counsel asserted to the effect that they were in possession of psychotropic drugs, which were prohibited by the Act, without being aware of their simple exemption. However, the following circumstances acknowledged by the evidence duly adopted and examined by this court, namely, ① the Defendant was unable to bring an action regarding the particulars of holding the above prohibited drugs, ② the seizure of psychotropic drugs, which was conducted around January 12, 2018, and the majority of 17, which were confirmed as psychotropic drugs, were not identified as being psychotropic drugs, and the Defendant’s prescription was issued from May 6, 2016 to February 6, 2017. However, the Defendant’s assertion that it was difficult to view that the above prescription was issued to the effect that it was out of the above psychotropic drugs, and that it was difficult to find that the prescription was issued by the above psychotropic drugs, and that it was out of the prescription issued by the above psychotropic drugs, and that it was difficult to view that it was out of the prescription issued by the above psychotropic drugs at the time of its issuance.

3. Summary of grounds for appeal by the defendant;

A. misunderstanding of facts or misapprehension of legal principles

1) Related to the administration of philophones

The defendant was under the influence of a medication due to depression and dystrophism, and there is no fact that he administered philophones.

The Defendant’s defense and hair cannot be deemed as evidence submitted voluntarily by the police against the Defendant’s will, and it constitutes illegally collected evidence since it was seized after about 12 hours have elapsed since it was conducted voluntarily. The lower court convicted the Defendant on the ground of illegally collected evidence without admissibility.

(ii) pertaining to the possession of psychotropic drugs

The Defendant’s medicine, which was possessed by the Defendant, was prescribed by the doctor and possessed by the doctor. The Defendant has taken various drugs for a long time due to extreme mental anxiety. Even if the Defendant was not a medicine prescribed, the Defendant possessed them without knowing the fact that it was a psychotropic drug.

C. Unreasonable sentencing

The punishment of the second instance court (one year of imprisonment and two months of imprisonment) is too unreasonable.

4. The judgment of this Court

A. Determination as to the assertion on the administration of philophones

1) The Defendant’s defense and hair are evidence illegally collected in a state of illegal confinement.

On March 13, 2018, the Defendant voluntarily moved to the △△ Police Station at the △△ Police Station (the same trial records (hereinafter referred to as the same trial records) on the charge of a taxi-free cab on March 13, 2018. The Defendant voluntarily moved to the △△ Police Station (the same evidence records (hereinafter referred to as the same evidence records) (165 pages of the trial records) due to the charge of opon medication) (43 pages). The Defendant’s mother was contacted by police officers, and the Nonindicted Party arrived at the △△ Police Station at the time exceeding 12:00 on the same day. After that, the time when the Defendant submitted his opon and the mother to the police officers at the △ Police Station and the 22:00 on the same day is the same day.

The defendant voluntarily runs in △ District, from 09:40 to 12 hours, submitted urines and hairs to the police station.

However, Article 3(2) of the Act on the Performance of Duties by Police Officers provides that “A police officer may request a person who is requested to accompany to a police station, police station, police station, or branch office (including a regional coast guard office; hereinafter “police agency”). In such cases, a person who is requested to accompany may refuse such request.” Article 3(6) of the same Act provides that “A police officer shall not allow a person who is accompanied to a police agency to stay in the police agency for more than six hours pursuant to paragraph (2).”

It is certain that even based on 22:00 on which the defendant submitted the defense and his hair to police officers, the defense and the hair have been submitted after more than six hours from the time when the defendant voluntarily runs. There is no fact that the police has been issued an arrest warrant while the defendant was staying in the police station.

Therefore, it cannot be deemed that the situation of illegal detention is not the situation of criminal detention, regardless of whether the defendant has been staying in a police station for more than six hours after the defendant enters a police station in the form of voluntary confinement. The admissibility of evidence is denied as evidence illegally collected by the defendant, and thus, it cannot be considered as evidence of guilt.

2) It is difficult to view the Defendant’s defense and hair as an voluntarily produced evidence.

A) Relevant legal principles

Article 215 of the Criminal Procedure Act provides for search, seizure, and inspection by warrant, and Article 216 and Article 217 of the same Act provides for compulsory dispositions (e.g., seizure, search, and inspection at the site of arrest) not subject to warrant, and seizure by voluntary submission, which are not subject to warrant under Article 218 of the same Act. In light of the regulatory system, the Criminal Procedure Act provides for seizure by voluntary submission under Article 218 of the same Act by means of evidence collection separate from seizure by warrant under Article 215 of the same Act.

The purpose of this voluntary submission is to harmonize the principles of due process and the request for the discovery of substantive truth with the aim of realizing justice of criminal justice by allowing investigative agencies to collect evidence promptly and efficiently.

However, since an investigative agency is superior to a suspect, if a voluntary submission is made at the request of an investigative agency, a seizure may be practically conducted under the pretext of voluntary submission. As such, the prosecutor must prove that there is voluntary submission to the extent that it can be ruled out a reasonable doubt, and if it cannot be deemed that it is voluntarily submitted, the admissibility of evidence cannot be recognized (see Supreme Court Decision 2013Do1233, Mar. 10, 2016).

B) In the instant case:

Even if there was no problem of illegal confinement as seen earlier in this case, considering the following circumstances, it is difficult to view that the defendant has voluntariness in submitting his/her defense and hair, and there is no other evidence to acknowledge voluntariness. Since the investigative agency did not have been issued a warrant of search, seizure, and verification, it is inadmissible as evidence of unlawful collection.

① Police officers of the police station at △△△ police station voluntarily operated the Defendant at the △△ Police Station and demanded the Defendant to voluntarily submit the alteration and hair to the Defendant. However, the Defendant asserted that there was no fact that philophone was administered, and refused to voluntarily submit the alteration and hair (Evidence No. 47 pages). As police officers continued to learn, the Defendant stated that she would voluntarily submit the urine and hair, but refused to submit the urine and hair, and reversed the intention of voluntary submission (Evidence No. 53 pages of the evidence record).

② At the time of the lower court’s trial, police officers testified that the Defendant was physically and mentally in a state where the phonephone was administered, but the Defendant had a mental and physical condition to understand the meaning and effect of voluntary submission, and that the Defendant had sufficiently explained the meaning and effect of voluntary submission. Thus, police officers should have given up the seizure through voluntary submission and obtained a warrant of seizure, search, and inspection to ensure that the Defendant was able to obtain a warrant of voluntary submission, because the Defendant expressed his/her intent to refuse voluntary submission, despite hearing the explanation of the police officers.

③ The police officers committed the Defendant’s mother Nonindicted Party as the police station for the purpose of understanding and gathering the Defendant again, and the Defendant, upon obtaining the Nonindicted Party’s snow, submitted the Defendant’s eye with water inside the urinals of the police officers, instead of the urinals. On the condition that the Nonindicted Party, other than the police officers, gave consent to the gathering of hair only on the condition that the Defendant gather (the 53 pages and the 148 pages of the trial record). On the contrary, the Nonindicted Party’s perception appears to have failed to submit the Defendant voluntarily.

In the end, the Defendant received a defense from the Nonindicted Party and female police officers, while opening a door to the roadsides in the toilets where there is a base.

④ Police officers may appear in the court of the original instance as a witness, and did not collect urines and hair repeatedly, and even if based on the content of the investigation report prepared by the police officer in the course of collecting urines and hairs, it is possible to confirm that the police officers had no intent to voluntarily submit urines and hairs to the Defendant.

3) The secondary evidence, such as the outcome of the urictal and maternity appraisal, is also inadmissible.

Article 308-2 of the Criminal Procedure Act provides that "Any evidence collected in violation of the due process shall not be admitted as evidence." In principle, not only the evidence collected by the investigative agency in violation of the procedures prescribed by the Constitution and the Criminal Procedure Act, but also the secondary evidence obtained based on this shall not be admitted as evidence for conviction (see Supreme Court Decision 2008Do11437, Mar. 12, 2009).

As seen above, as long as police officers received the defense and hair from the defendant, they are illegal, a report on investigation with the purport that they obtained a simple trial examination and a training reaction due to the defendant's defense and the results of appraisal by the National Institute of Scientific Investigation on the defense and the hair of the defendant also have no admissibility of evidence as secondary evidence.

B. Determination on the assertion on the part of holding psychotropic drugs

1) Where the defendant presents a prescription

A) Relevant provisions and legal principles

Article 4(1) of the Narcotics Control Act provides that a person other than a person handling narcotics may handle narcotics, notwithstanding Article 4(2) of the same Act, if he/she possesses narcotics after being administered by a medical practitioner handling narcotics, etc.; however, Article 4(2) of the same Act provides that a person other than a person handling narcotics may handle narcotics if he/she possesses narcotics after being administered by a medical practitioner handling narcotics, and Article 4(2) of the same Act provides that a person other than a person handling narcotics may handle narcotics, but the same applies to cases where he/she possesses

The finding of guilt in a criminal trial shall be based on evidence with probative value, which makes it possible for a judge to have the truth that the facts charged are true beyond a reasonable doubt, and if there is no such proof, even if there is no doubt of guilt against the defendant (see, e.g., Supreme Court Decisions 2001Do2823, Aug. 21, 2001; 2005Do8675, Mar. 9, 2006).

B) In the instant case:

The Defendant presented at the court of the court below a prescription that the Defendant was issued with the doctor’s stroke, log stroke, and DNA set, and as seen below, the Defendant cannot exclude the possibility that the Defendant was possessed by the above prescription.

(1) A strokem.

The Defendant, during the period from May 6, 2016 to February 6, 2017, as follows, was prescribed by the intention of 140 years at the stroke mm containing the stroke m (No. 1, 208-211 pages of the trial record).

The defendant's stm that he possessed on January 12, 2018 can not be excluded from the possibility of one of the above-mentioned stm.

On May 6, 2016, the prescribed date and time hospital included in the main sentence, the sum of the 28th day and the 28th day and the 28th day and the 28th day and the 28th day and the 28th day and the 28th day and the 40th day and the 28th day and the same on September 7, 2016, the 28th day and the 28th day and the 28th day and the same on February 6, 2017, respectively.

Finally, even though the Defendant’s date on which he was determined by the stroke-m on February 6, 2017, the date of possession is about one year prior to the date of possession, it cannot be deemed that the Defendant’s keeping of the drugs as prescribed by one year prior to the date of possession is an exceptional. This is more true in that the stroke-m, which was held by a prescription during the foregoing period, is not less than 140, and that the Defendant continued to receive treatment such as strokes, depressions, etc.

(2) Two softs.

During the period from May 6, 2016 to December 27, 2017, the Defendant respectively prescribed 63 in the sum of the logs containing the logs (Evidence 1, No. 208, No. 209 of the trial record, No. 209 of the trial record) and the logs containing the logs (Evidence 2, No. 225 of the trial record, No. 225 of the trial record) as follows:

본문내 포함된 표 처방일시 병원 처방 내용 비고 1 2016. 5. 6. △△△ ◇◇◇ 병원 로라반정 28정 1일 1정, 28일분 2 2016. 6. 24. 상동 로라반정 28정 상동 3 2017. 12. 27. ☆ 정신과 의원 아티반정 7정 1일 1정, 7일분 합계 63정

피고인이 2018. 1. 12. 소지한 로라제팜 2정은 약 한달여 전에 ☆ 정신과 의원에서 처방받은 아티반정 7정 중 일부일 가능성이 있고, 그 전에 처방받은 로라반정 56정 중 일부일 가능성도 배제할 수 없다.

(3) A set forth in paragraph (8).

피고인은 2017. 12. 27. ☆ 정신과 의원에서 디아제팜 성분이 함유된 명인 디아제팜정을 1일 1회, 7일분을 처방받았다(변호인 제출 증 제2호, 공판기록 225쪽).

피고인이 2018. 1. 12. 소지한 디아제팜 8정 중 7정은 약 한달여 전에 ☆ 정신과 의원에서 처방받은 명인 디아제팜정일 가능성이 있다.

(b)the prescription is not submitted;

Although the Defendant did not submit a prescription as to plug 2, 4, and 1, which was possessed by the Defendant on January 12, 2018, the possibility that the Defendant was provided with a prescription for plug 2, 4, and 1, in light of the following circumstances, the Defendant could not exclude the possibility that the Defendant was provided with a prescription for treatment, such as plug plug plug, plug plug spla, etc.

(1) Pluraters are aimed at stabilizing bendimerine finines used for spadys, etc., and Alfludine benine fludine stability agents used for uneasiness, longer tensions, sound, and surface disorders, which are determined by the Defendant, and are deemed to have the same efficacy as fludine fludin fludine flusiums, where the Defendant was determined.

② From 2 to 3 years, the Defendant had been receiving psychotropic drugs for treatment of symptoms, influences, depression, depression, etc. showing a sense of cryptism, and was hospitalized in a hospital due to Compilation mental division.

③ In the lower judgment, the prosecutor asked the National Health Insurance Service’s “the Defendant, during the period from September 1, 2017 to January 13, 2018, to submit to the National Health Insurance Corporation’s head office “if any, he/she was to receive the preparation of the content of the content of the preparation of the content of the content of the drug as above during the pertinent period (as seen earlier, 239 pages of the trial record).” The National Health Insurance Service’s head office sent out that the Defendant did not receive the content of the preparation of the drug during the pertinent period. However, as seen earlier, as the Defendant actually received the content of the drug containing the soft and DNA ingredients, it is difficult to trust the details of the inquiry by the National Health Insurance Service as it is.

④ Although the Defendant did not make a statement from the beginning that he had been prescribed as a DNA Pamp, or as a result, he did not satise whether he had been prescribed as a drug of a specific ingredient from a doctor. It cannot be ruled out that the Defendant had sufficiently proven that the psychotropic drug possessed by the Defendant was possessed without a prescription.

⑤ On January 12, 2018, the Defendant, along with male, was accommodated in the telephone, was reported to the police by the father of the Defendant, and was confirmed whether the phone was administered. At that time, the Defendant voluntarily submitted psychotropic drugs, such as fluice and fluc book, possessed in the clothes in question, to the police. In the Defendant’s urine, the phone ingredients were not discovered, and the Defendant was judged to have been voiced in the examination for confirmation on the strokefin and strokef.

(6) It is difficult to readily conclude that the Defendant’s act of taking excessive psychotropic drugs is a medicine that he/she possesses without prescriptions.

C. Sub-decision

As seen above, since there is not sufficient evidence to prove each of the facts charged in this case, the facts charged in this case constitutes a case where there is no evidence to prove a crime. Nevertheless, the court below found the defendant guilty only by the evidence in its judgment. The court below erred by misapprehending the facts or by

5. Conclusion

Since the appeal by the defendant is well-grounded, the judgment of the court below shall be reversed in accordance with Article 364(6) of the Criminal Procedure Act, and the judgment shall be rendered again as follows.

The facts charged of this case are as indicated in the above paragraph (1). This constitutes a case where there is no proof of crime as seen in the above paragraph (4), and thus, the defendant is acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the summary of the verdict of innocence according to the defendant's will

Judge Limited (Presiding Judge) Kim Jong-sung Lee