Whether an act of inserting marijuana purchased for the purpose of smoking is a crime of holding marijuana, separate from the crime of the trade of marijuana, by inserting it into the nives of at least two days to capture an opportunity to smoke (affirmative)

Where a person continues to hold the purchased marijuana without disposing of it, his possession is in an indivisible relationship with the trade act, or unless it is judged that the possession is merely an inevitable result accompanied by the trade act and is temporarily conducted, the act of holding it shall be deemed not to be covered by the trade act, but to constitute the crime of holding marijuana, unlike the crime of selling it. Thus, the act of purchasing marijuana for the purpose of smoking and then inserting the opportunity to smoke after purchasing it, which is possessed by a son, cannot be evaluated as an indivisible result of the trade act.

Articles 3 and 4 subparag. 3 of the Cannabis Control Act, Article 37 of the Criminal Act

Defendant

Prosecutor

Seoul High Court Decision 89No3466 delivered on January 25, 1990

The non-guilty portion of the judgment below shall be reversed, and that part of the case shall be remanded to the Seoul High Court.

As to the Prosecutor’s Grounds of Appeal

According to the reasoning of the judgment of the court below, around 18:00 on July 26, 1989, the defendant put 1.8 grams of the hemp 1.8, which he purchased from the non-indicted, into the defendant's subordinate machine from July 28, 2000 of the same year until July 20:00 of the same year, and the prosecutor indicted the defendant for the crime of holding marijuana, and the court below acquitted the defendant on this part on the grounds that the illegal possession of the marijuana prohibited by the marijuana Control Act is for regulation when it can be deemed that the illegal possession of the marijuana is a new possession, regardless of the trade act of the marijuana, regardless of social norms. In this case, the defendant merely put the marijuana purchased from the non-indicted, into the main machine, and such possession is nothing more than that of the trade act, and it does not constitute a separate crime of holding marijuana.

However, if the purchased marijuana continues to be held without disposing of it, it shall be deemed that the act of holding it constitutes the crime of holding marijuana separate from the crime of selling it, unless it is judged that the act of holding it is in an indivisible relationship with the trade act, or that it is merely an inevitable result accompanying the trade act and is temporarily conducted.

In the case of this case, it is clear in the record that the defendant purchased marijuana for the purpose of smoking and gave an opportunity to smoke after purchasing it, and as such, it is not possible to evaluate such possession as an indivisible result of the trade act.

Nevertheless, the judgment of the court below, on the grounds as seen earlier, acquitted the portion of the hemp possession, which affected the conclusion of the judgment by misapprehending the legal principles on the prohibition of unauthorized possession under the Cannabis Control Act. The arguments are well-grounded.

Therefore, the non-guilty portion of the judgment below is reversed, and that part of the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon Young-young (Presiding Justice)