Defendant 1 and one other

Defendants and Prosecutor

Kim Jong-chul

Attorney Kim Jong-soo et al.

Applicant 1 et al.

Jeonju District Court Decision 2010 Gohap75, 2010 Gohap171 (Consolidated), 2010 Gohap177 (Consolidated), and 2010 Gohap526, 527 compensation order decided January 18, 201

The judgment of the court below is reversed.

Defendant 1 shall be punished by imprisonment for two years and by imprisonment for one year and four months, respectively.

3,600,000 won from Defendant 1, and 3,040,000 won from Defendant 2 shall be collected respectively.

All of the applicants for compensation are dismissed.

1. Summary of grounds for appeal;

A. Defendant 1

The punishment sentenced by the court below to Defendant 1 (one year and eight months of imprisonment, additional imposition 736,00 won) is too unreasonable.

B. Defendant 2

The punishment sentenced by the court below to Defendant 2 (one year and six months of imprisonment, additional collection charge 1,140,000 won) is too unreasonable.

(c) Prosecutors;

(1) Legal principles

As to the admissibility of the evidence of the statement of Nonindicted 3, the court below rejected the admissibility of the above statement on the ground that it was confirmed in the court below that the whereabouts of Nonindicted 3 was unknown as a result of the detection of Nonindicted 3's whereabouts, and that Nonindicted 3 was unable to make a statement at the court, and that the above statement was prepared under particularly reliable circumstances, the admissibility of the evidence was recognized by Article 314 of the Criminal Procedure Act.

(2) misunderstanding of facts

Of the facts charged in this case, with respect to the violation of the Act on the Control of Narcotics, etc. (fence) from the import of each phiphones, the Defendants committed a violation of the Act on the Control of Narcotics, etc. (flaps). In light of the fact that the place of delivery of the price of grain containing phiphones to the Defendants was sent to the Republic of Korea and China, and the Defendants were sent to the grain booms containing phiphones, so the Defendants could have known that the counter-party who transferred the price was a phiphones in China, and Nonindicted 2, who transferred the grain blag, stated that the police was paid transportation expenses from the Defendants or Nonindicted 3, and that the Defendants transferred the grain blag, and that the name of the account in which the Defendants sent the purchase price of the phiphones, could be recognized as China in its name, the lower court acquitted the Defendants of the facts charged, even if it was sufficiently recognized that the Defendants received the balphones from China.

(3) Unreasonable sentencing

The sentence imposed by the court below to the defendants is too uneasible.

2. Determination

(a) Grounds for ex officio destruction;

Before deciding on the grounds for appeal by the Defendants and the prosecutor, the prosecutor, ex officio, maintains the part of the facts charged in this case concerning the Defendants’ violation of the Act on the Control of Narcotics, etc. (fence) due to the import of each penphones as the primary facts charged, and this part of the facts charged in this case is added to the charges of violation of the Act on the Control of Narcotics, etc. (fence) due to the purchase of each penphones and permission by this court, so the judgment of the court below is no longer maintained. However, the prosecutor's misapprehension of the legal principles as to the primary facts charged and misapprehension of the legal principles as to the facts charged, even though there are grounds for ex officio reversal, are still subject to

B. Regarding the Prosecutor’s assertion of misapprehension of the legal principle

If a document or a document recording or recording a suspect's statement is prepared in the course of investigation in an investigative agency, it cannot be seen as different from an interrogation protocol even if it took the form of "written statement, written statement, or written statement". The right to refuse to make statements by a suspect guaranteed by the Criminal Procedure Act is based on the right to refuse to make statements unfavorable to a criminal suspect, which is guaranteed by the Constitution, and thus, if the investigative agency did not notify the suspect of the right to refuse to make statements in advance in interrogation of the suspect, the suspect's statement should be denied even in cases where the discretion of statement is recognized as illegally collected evidence (see Supreme Court Decision 2008Do8213, Aug. 20, 2009, etc.).

In order to assist the defendants in importing or purchasing phiphones from Nonindicted 1, Nonindicted 3 is a person who has served as a witness in the crime of importing or purchasing phiphones from Nonindicted 2, who received or purchasing the grain phiphones from Nonindicted 3, together with the defendants or alone, from the Incheon International Passenger Terminal. Thus, the defendants' position is the suspect. Even if Nonindicted 3 took the form of the statement, the actual contents and character of the statement can not be seen differently from the suspect interrogation of Nonindicted 3. Therefore, unless there is no evidence to acknowledge that the investigative agency notified Nonindicted 3 of the right to refuse to make statements in advance pursuant to Article 244-3(1) of the Criminal Procedure Act, the statement with Nonindicted 3 cannot be admitted as evidence of guilt because it has no admissibility as evidence illegally collected and it cannot be admitted as evidence of guilt against the defendants (con sum, even if Nonindicted 3's statement satisfies the requirements of special character as prescribed in Article 314 of the Criminal Act, it does not admit the prosecutor's request for video recording verification.

Therefore, although the court below's explanation that the non-indicted 3's statement did not meet the requirements set forth in Article 312 (4) was inappropriate, the court below's rejection of the admissibility of evidence of the above statement is eventually justifiable. Thus, the prosecutor's allegation in this part is without merit.

C. Regarding the prosecutor's assertion of mistake

Examining the evidence duly adopted and examined by the court below in light of the records, the court below's determination that the defendants 1 imported the rophone in collusion with the non-indicted 1 in China on December 8, 2009, through the non-indicted 2, who entered the second International Passenger Terminal of Incheon in order to receive approximately 1g of luculon from the luculon through the non-indicted 2, who entered the second International Passenger Terminal of Incheon on December 8, 2009, and the defendants imported the rophone in collusion with the above non-indicted 1 in collusion with the above non-indicted 1 on January 7, 2010, about 2g of the rophonephone in the same manner at the above passenger terminal of around 11:00 on February 4, 2010, and about 5g of the luculon from the above luculon in consultation with the above non-indicted 1 in order to find the defendants guilty of the part of the facts charged by the prosecutor.

3. Conclusion

Therefore, there is no reason to believe that there is a misapprehension of the legal principles by the prosecutor about the primary facts charged in violation of the Act on the Control of Narcotics, etc. (friend) due to the import of each phiphonephone, but the court below has a ground to reverse the judgment of the court below on the grounds that there is a ground to reverse the above ex officio, and the judgment below is reversed under Article 364(2) of

The summary of the facts constituting the crime of the Defendants and the evidence related thereto recognized by this court is as follows, and the facts constituting the crime, which is added to the crime column of the court below, shall be added to the crime column of the court below, and the summary of the evidence added below, shall be as stated in the facts constituting the crime and the summary of the evidence as stated in the court below except for the addition of the part in the column of the evidence added below

[2010Gohap75]

5. Defendant 1’s crime;

Defendant 1 decided to pay KRW 1 million to Nonindicted 1 and purchase philophones.

At around 10:00 on December 7, 2009, Non-Indicted 1 requested Non-Indicted 2 to put the vinyl paper, which contains approximately 1g of phiphonephones at the upper end of the Hansan Water Complex, which is an agricultural product wholesale market in the Chinese Cheongdo, into the grain package, and deliver it to Non-Indicted 2 to the Incheon port in Korea.

피고인 1은 선배인 공소외 3과 함께 2009. 12. 8. 11:00경 인천 제2국제 여객터미널로 가서, 피고인 1은 차량 안에서 기다리고 공소외 3은 청도발 인천행 여객선을 타고 입국한 공소외 2에게 배삯을 지급하고 필로폰 약 1g이 들어 있는 곡물포대를 건네받아 차량 안에 적재하였다.

Accordingly, Defendant 1 purchased psychotropic drugs.

6. Joint crimes by the Defendants

The Defendants conspired to purchase philophones.

A. On January 4, 2010, the Defendants collected 1.5 million won each philophone purchase price, and remitted the total amount of KRW 3 million to Defendant 2’s account under the name of JINJYUN.

At around 10:00 on January 6, 2010, Nonindicted Party 1: (a) put a white plastic paper containing approximately 2g of philopon at the upper end of the Korean Agricultural Water Complex located in the Chinese Cheongdo of China into a grain pole, and requested Nonindicted Party 2 to deliver it to the Incheon Port of Korea.

피고인 2는 공소외 3과 함께 2010. 1. 7. 11:00경 인천 제2국제 여객터미널로 가서, 피고인 2는 차량 안에서 기다리고 공소외 3은 청도발 인천행 여객선을 타고 입국한 공소외 2에게 배삯을 지급하고 필로폰 약 2g이 들어있는 곡물포대를 건네받아 차량 안에 적재하였다.

around 18:00 on January 7, 2010, the Defendants divided the ○○○○○ Marart’s office located in the west-gu Seoul Metropolitan City, Seo-gu (hereinafter referred to as “1 omitted”) by one gramphone, purchased as above, from the 3rd floor office of ○○○○ Mart. 201.

B. On January 29, 2010, at around 20:37, the Defendants: (a) collected 1,50,000 won each of their own phiphones; (b) to purchase approximately KRW 5,00,000,000; and (c) Defendant 2 transferred KRW 3,000,000 (in order to pay KRW 1,50,000,000,000,000,000 as above to pay KRW 1,50,000,000 to Nonindicted Party 1, Defendant 2 paid KRW 1,50,000,000 to Defendant 2; and (d) the actual amount paid to Defendant 2 to account under the name of “JINJYUN”.

At around 10:00 on February 3, 2010, Nonindicted Party 1: (a) put a white plastic paper containing approximately 5g of philopon at the upper end of the Korean Agricultural Water Complex located in the Chinese Cheongdo; and (b) requested Nonindicted Party 2 to deliver it to the Incheon Port in Korea.

피고인들의 부탁을 받은 공소외 3은 2010. 2. 4. 11:00경 인천 제2국제 여객터미널에서 청도발 인천행 여객선을 타고 입국한 공소외 2에게 배삯을 지급하고 필로폰 약 5g이 들어있는 곡물포대를 건네받아 차량 안에 적재하였다.

At around 18:00 on February 4, 2010, the Defendants divided the 2.5g philophones purchased from the office of the third floor of the above ○○○ Marart.

Accordingly, the Defendants conspired to purchase the above psychotropic drugs twice.

[Each fact of paragraphs 5 and 6 at the Time of Sales]

1. Defendants’ oral statement at each trial

1. Part of the original judgment by Nonindicted 2’s witness’s legal statement

1. Each prosecutor's interrogation protocol against the Defendants

1. The police statement of Nonindicted Party 2

1. A criminal investigation report (the current status of entry or departure of each individual) and a criminal investigation report (the partial confirmation of a suspect deposit account);

1. Article relevant to the facts constituting an offense and the selection of punishment;

A. Defendant 1

○ Delivery of Handphones: Articles 60(1)3, 4(1), and 2 subparag. 4(b) (Optional to Imprisonment) of the Narcotics Control Act

000 Docon medication: Articles 60(1)3, 4(1), and 2 subparag. 4(b) (Optional to Imprisonment) of the Narcotics Control Act

○ Purchasing Handphones: Articles 60(1)3, 4(1), and 2 subparag. 4(b) of the Narcotics Control Act; Article 30 of the Criminal Act (Appointment of Imprisonment)

B. Defendant 2

○ point of receipt of philophones: Articles 60(1)3, 4(1), and 2 subparag. 4(b) of the Narcotics Control Act (Optional to Imprisonment)

000 Docon medication: Articles 60(1)3, 4(1), and 2 subparag. 4(b) (Optional to Imprisonment) of the Narcotics Control Act

○ Fraud: Article 347(1) of each Criminal Code (Selection of Imprisonment)

○ Purchasing Handphones: Articles 60(1)3, 4(1), and 2 subparag. 4(b) of the Narcotics Control Act; Article 30 of the Criminal Act (Appointment of Imprisonment)

1. Aggravation of repeated crimes (Defendant 1);

Article 35 (Crimes Committed by Defendant 1 as indicated in the Judgment of the court below and Crimes 5 and 6 )

1. Aggravation of concurrent crimes (defendants);

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

1. Additional collection:

The proviso of Article 67 of the Narcotics Control Act

○ 피고인 1 : 3,600,000원{= (필로폰 1ｇ당 전국 평균 소매가격 800,000원) × (1g + 1g + 2.5g)}{ 피고인 1은 3회에 걸쳐 필로폰 합계 4.5g을 매수한 다음 그 필로폰 중 일부를 투약하거나 피고인 2, 원심 공동피고인 3, 4에게 교부하였으므로, 피고인 1에 대한 추징의 범위는 위와 같이 매수한 필로폰 합계 4.5g에 한한다( 대법원 2000. 9. 8. 선고 2000도546 판결 참조).}

○ 피고인 2 : 3,040,000원{= (필로폰 1ｇ당 전주지역 및 전국 평균 소매가격 800,000원) × (0.3g + 1g + 2.5g)}{ 피고인 2는 필로폰 0.3g을 수수하고 필로폰 합계 3.5g을 매수한 다음 그 필로폰 중 일부를 투약하였으므로, 피고인 2에 대한 추징의 범위는 위와 같이 수수하거나 매수한 필로폰 합계 3.8g에 한한다.}

1. Dismissal of an application for compensation order (Defendant 2);

Article 32(1)3 and (2), and Article 25(3)3 of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings (the scope of liability of Defendant 2 is not clear).

1. Defendant 1

Defendant 1’s crime of this case purchased psychotropic drugs, three times, and delivered them to Defendant 2, etc., or directly administered phiphones. The crime of this case is not good in light of the legislative intent of the Narcotics Control Act that strictly limits the transaction, administration, etc. of phiphones in order to prevent serious harm caused by the misuse or abuse of phiphones, etc., and Defendant 1 was punished three times for the same crime since 1999, but he also committed the crime of purchasing phiphones in this case during the period of repeated crimes, etc., which is disadvantageous to Defendant 1.

On the other hand, there are favorable circumstances such as Defendant 1’s confession and reflect on his crime; Defendant 1’s quantity of phiphones purchased, administered, or delivered by Defendant 1 is relatively large; Defendant 1 cooperates with the investigation of co-defendant 3, 4, and others. Considering the favorable circumstances for Defendant 1, and other circumstances that are favorable to Defendant 1, such as Defendant 1’s age, character and behavior, environment, motive, means and consequence of the crime; Defendant 1’s motive, means and consequence after the crime; Defendant 1’s purchase of phiphones is additionally found guilty due to the changes in the indictment at the above unfavorable circumstances and the party trial; and each of the above crimes of purchasing phiphones are conducted in the same form as the crime of importing phiphones, which is more severe than the statutory penalty in external form.

2. Defendant 2

Defendant 2’s crime of this case is an unfavorable circumstance to Defendant 2 on the following grounds: (a) the act of this case committed by Defendant 2: (b) the act of this case was received from Defendant 1, who is a psychotropic drug, or purchased phiphones with Defendant 1, and directly administered phiphones over several times for two months; (c) the crime of this case is not good in terms of the legislative intent of the Narcotics Control Act; (d) Defendant 2, an applicant for compensation by the victim 2 and 1, received money in the name of investment money from Defendant 2 and 1; and (e) the crime of this case was committed in the course of police investigation.

On the other hand, Defendant 2 voluntarily surrendered to an investigative agency, the confession and the attitude of penphone purchase in the instant case is taking account of the circumstances favorable to Defendant 2, such as the fact that Defendant 2 had no criminal record exceeding the same criminal record and fine, and that there was an agreement with the victims of fraud at the time of the trial. Considering the circumstances favorable to Defendant 2 and other circumstances favorable to Defendant 2, including Defendant 2’s age, character and conduct, environment, motive, means and consequence of the instant crime, and the circumstances after the crime, various circumstances constituting the conditions for sentencing as indicated in the instant argument, including the circumstances after the crime. However, the sentence shall be determined as per the order, taking into account the above unfavorable circumstances and the changes in indictment at the trial and the fact

Of the facts charged in the instant case, around 11:00 on December 8, 2009, Defendant 1 in collusion with Nonindicted Party 1 in China, and around 11:00 on December 8, 2009, imported philopon in a way of delivery of grain bags containing approximately 1g of philopon from Nonindicted Party 2 via Nonindicted Party 2, who entered the International Passenger Terminal of Incheon Incheon, and the Defendants conspired with the above Nonindicted Party 1 on January 7, 2010, and found Defendant 1 not guilty of the charge of the violation of the Act on the Control of Narcotics, etc. (the order of the Defendants to purchase approximately 2g of philopon in the same manner at the above passenger terminal and approximately 5g of philopon around 11:0 on February 4, 2010, since there is no proof of a crime as seen in Article 2-325(c) of the Criminal Procedure Act.

It is so decided as per Disposition for the above reasons.

Judges or higher-ranking (Presiding Judge)