The starting time of the execution of the act of selling and selling marijuana or psychotropic drugs under Articles 59(1)7 and 60(1)2 of the Narcotics Control Act (i.e., when the act of closeing and fasting to the sale and purchase was committed) and the time of number (i.e., when the transfer of possession of narcotics is completed)

Article 59(1)7 and (3), Article 60(1)2 and (3) of the Narcotics Control Act, Article 25(1) of the Criminal Act

Defendant

Defendant and Prosecutor

Attorney Kim Jong-ok

Seoul High Court Decision 2019No2571 decided February 7, 2020

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. As to the Prosecutor’s Grounds of Appeal

A. Summary of the facts charged

1) The first crime

On December 7, 2018, at around 01:19, the Defendant decided to purchase 3.5g of marijuana from the sales volume on the Internet, which he/she became aware of via the Internet, for KRW 70,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000 won.

(ii) the third crime;

On December 17, 2018, around 00:24, the Defendant decided to purchase psychotropic drugs from the said sales book in KRW 80,000 (MMA, one name “EXM”; hereinafter “EXM”). The Defendant wired KRW 80,00 to the said account known by the said sales book. However, the Defendant did not transmit the EXM, and did not commit an attempted crime.

(iii) the fourth crime;

On December 20, 2018, the Defendant, around 23:30 on December 20, 2018, intended to purchase 3g of hemp from the sales books on the Internet’s name-free, to KRW 575,000,000. However, the Defendant transferred KRW 575,00 to the account in the name of Nonindicted 2, which was known to the said sales books, but the said sales books were not sent for an attempted offense.

B. The judgment of the court below

The lower court acquitted a purchaser of each attempted crime under Articles 1, 3, and 4 ex officio on the ground that “it is difficult to recognize a purchaser’s commencement of practice with the payment of the purchase price for narcotics, etc., and it shall be deemed that the act of transferring the authority to dispose of the narcotics to a purchaser or transferring the possession of the narcotics to a purchaser after the establishment of an agreement on the sale and purchase of the narcotics, etc., or the act of transferring the possession of the narcotics to a purchaser, but it is difficult to recognize it only with the evidence submitted by the prosecutor.” However, the lower court found the establishment of preliminary crime against each

C. Judgment of the Supreme Court

The above judgment of the court below is hard to accept for the following reasons.

1) An act of trading marijuana or psychotropic drugs as prescribed in Articles 59(1)7 and 60(1)2 of the Narcotics Control Act shall be deemed to have commenced when an act of closeing and fasting to the sale and purchase was committed, and it shall be deemed to have reached the number when the transfer of possession of narcotics is completed.

2) In a case where Nonindicted 3, a sales book, possessed or obtained narcotics, etc., which are the subject matter of sale, on each date and time indicated in the facts charged as to the crime of attempted crimes committed in the first, third, and fourth instances, or was in a position possible, and the Defendant transferred the sales price to Nonindicted 3, who is in such a position, then the Defendant may be deemed to have committed an act of closeing and smuggling to each act of purchasing narcotics.

3) Nevertheless, without examining all such circumstances, the lower court determined that the Defendant’s attempted crimes under Articles 1, 3, and 4 cannot be deemed to have led to the commencement of the commission of the crime, and that the Defendant’s attempted crimes under the Act on the Control of Narcotics, Etc. from the Attempted Sale of Narcotics, Etc., and the violation of the Narcotics Control Act, were acquitted on the charges of violation of the Act on the Control of Narcotics, Etc., and convicted the Defendant of the charges of violation of the Act on the Control of Narcotics, etc., from the preliminary sale of narcotics, etc., which are the reduced facts with respect to the first and fourth crimes of this case. In so determining, the lower court erred by misapprehending the legal doctrine on the commencement of the commission of the purchase of narcotics, etc., which affected the conclusion of the judgment.

2. As to the Defendant’s ground of appeal

A. The ground of appeal that the lower court erred by misapprehending the legal doctrine on confiscation and collection and by misapprehending the rules on confession reinforcement is not a legitimate ground of appeal since the Defendant alleged in the appellate court as the grounds of appeal or the appellate court decided as the subject of judgment ex officio. In addition, the lower court did not err by omitting the judgment on intention, contrary to what is alleged in the grounds of appeal.

B. However, it is pointed out that the court below ordered additional collection of 2.70,000 won for the crime of taking over the goods recognized as narcotics, etc. as indicated in the judgment of the court below (hereinafter “the second crime of this case”).

1) In holding that the Defendant violated Article 9(2) of the Act on Special Cases concerning the Prevention of Illegal Trafficking in Narcotics, Etc. by committing the second crime of this case, the lower court ordered to collect 270,000 won, which is funds provided for the second crime of this case, by applying the proviso of Article 67 of the Narcotics Control Act (hereinafter “Narcotic Control Act”).

2) Article 67 of the Narcotics Control Act provides that “narcotics, temporary narcotics, and facilities, equipment, funds, or means of transport provided for any crime as prescribed by this Act and profits therefrom shall be confiscated: Provided, That where such confiscation is not possible, the equivalent value thereof shall be collected.” However, a crime violating Article 9(2) of the Narcotics Transactions Control Act does not constitute “a crime as prescribed by this Act” under Article 67 of the Narcotics Control Act.

3) Therefore, the lower court erred by misapprehending the legal doctrine on the additional collection as stipulated in the proviso of Article 67 of the Narcotics Control Act, in ordering the additional collection of KRW 2.70,000 for the second crime of this case.

3. Scope of reversal

As seen earlier, the part of the judgment of the court below not guilty (including the acquittal in the grounds) should be reversed. Since the above reversed part and the part of the judgment of the court below which found the guilty guilty with the relation of a single crime or concurrent crimes under the former part of Article 37 of the Criminal Act should also be reversed, the judgment of

4. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Jae-chul (Presiding Justice)