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(영문) 대법원 2017.03.16 2016도20719
마약류관리에관한법률위반(향정)
Text

All appeals are dismissed.

Reasons

The grounds of appeal are examined.

1. Review of the record on the grounds of Defendant A’s appeal reveals that Defendant A appealed against the judgment of the first instance, and Defendant A asserted only unfair sentencing on the grounds of appeal.

In such a case, the argument that the lower court erred by misapprehending the legal doctrine cannot be a legitimate ground for appeal.

In addition, the argument that the judgment of the court below erred by misapprehending the legal principles on sentencing and infringing on the essential part of the principle of balance of punishment or the principle of responsibility is ultimately an unfair argument for sentencing.

According to Article 383 subparagraph 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment with or without prison labor for not less than ten years is imposed, an appeal may be filed on the grounds of unfair sentencing. As such, the argument that Defendant A’s punishment is unfair because it is too minor in this case where a minor sentence is imposed against Defendant A cannot be a legitimate ground for appeal.

2. As to the grounds of appeal by Defendant B, Articles 60(1)2, 4(1)1, and 2 subparag. 3(b) of the Act on the Control of Narcotics, Etc., which punishs a person who administers phiphones, are punished for an individual’s self-harm, the provisions of Articles 60(1)2, 4(1)1, and 2 subparag. 3(b) cannot be deemed to be in violation of the Constitution in violation of Article 37(2) of the Constitution.

On the other hand, according to the records, Defendant B appealed against the judgment of the court of first instance and asserted only unfair sentencing on the grounds of appeal.

In such a case, the argument that the lower court erred by misapprehending the legal doctrine cannot be a legitimate ground for appeal.

In addition, the argument that the judgment of the court below did not consider the reasons for sentencing under Article 51 of the Criminal Act is an unfair argument in sentencing.

According to Article 383 (4) of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment with or without prison labor for not less than ten years is declared, an appeal is filed on the grounds of unfair sentencing.

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