Defendant

Freeboard (prosecution), gambling (public trial)

Law Firm Dasan, Attorney Kim Tae-young

1. The punishment of the accused shall be determined by two years and six months;

2. Provided, That the execution of the above punishment shall be suspended for four years from the date this judgment becomes final and conclusive;

3. To confiscate 0.91g (including vinyls, No. 1), 6 f.o.b. (Evidence No. 2), melting melting presumed to be X masterss, 2.1g (except vinyls, No. 3) presumed to be marijuana, 0.75g (except vinyls, No. 4) presumed to be marijuana, 1 ref.m. (Evidence No. 14), f.m., red color caps (Evidence No. 17), 8 (Evidence No. 17), color caps presumed to be used at the time of inhaleing Phphones, 8 (Evidence No. 33), 8 (Evidence No. 34) presumed to be used at the time of inhaleing Phphones presumed to be confiscated.

4. 2.80,000 won shall be collected from the defendant.

5. An order to make the provisional payment of the money equivalent to the above additional collection charge.

6. Of the facts charged in the instant case, the facts charged pertaining to the violation of the Act on the Control of Narcotics, etc. (flavoring) due to the use of interest ingredients containing ethyl content shall be acquitted.

The defendant is a foreigner of the nationality of the People's Republic of China who is not a narcotics handler.

1. Medication of psychotropic drugs (one-name clopon; hereinafter referred to as “copon”);

A. On February 6, 2015, the Defendant administered the steam in a way of inserting the string in a pipe for smoking made in glass with the Nonindicted Party at ○○○○○○○ hotel 1208, located in Gangnam-gu Seoul, Gangnam-gu, Seoul, in a 1208 room.

B. On February 8, 2015, at around 00:30, the Defendant administered the diaphone in the room of ○○○○○○○○○○○○○○○○○○○ hotel located in Gangnam-gu, Seoul, with the Nonindicted Party, in addition to the Nonindicted Party.

2. Medication and delivery of psychotropic drugs (MDMA, a single X-gu, hereinafter referred to as “EXM”) medication and delivery;

The Defendant administered, at the same place as described in paragraph (b) of Article 1, in a manner that enables him to take place together with water at the time and place, and provided the Nonindicted Party a free of charge the X-gu 1.

3. Importation of smuggling drugs, such as phiphones;

On March 14, 2015, at around 23:05, the Defendant entered the territory of the Incheon Central Bureau located in Jung-gu, Incheon, using an aircraft of about 4.05g, about 05g, about 0.29g, about 0.26g, the psychotropic drug, at the home for the Defendant’s travel, while concealing approximately 0.7g, about 0.7g, and about 11g, from the Defendant’s clothes, the Defendant was sealed in a way of passing through the Incheon International Airport Entry Search Station.

1. Defendant's legal statement;

1. Statement of prosecutorial statement of the Nonindicted Party

1. In relation to the report on internal investigation (in addition to the details of hosting of the person suspected of being suspected, other than the case, and the personal details of the person suspected of being suspected), data attached thereto, investigation report (in relation to attachment of an appraisal report by the analysis office of the Incheon Airport Customs Office on confiscated articles, and the response to the training of phiphones confirmed by the glass organization presumed to have been used for the administration of phiphones, the details of the suspect's personal information and accompanying evidence, and data attached thereto;

1. An individual's entry or departure status, a written report on the appraisal of seized articles, a written report on the results of the maternity appraisal, a written report on the prosecution, and an appraisal report on the suspect's hair;

1. 0.91g (including vinyls, No. 1), 6 f.o.b. (Evidence No. 2), melting melting presumed to be an extracter, 2.1g (excluding vinyls, No. 3) presumed to be marijuana, 0.75g (excluding vinyls, No. 4) presumed to be marijuana, 1 ref.m. (Evidence No. 14), f.m., red color caps (Evidence No. 17), 8 (Evidence No. 33) presumed to be used at the time of inhaleting phiphones, 8 (Evidence No. 34) presumed to be used at the time of inhaleing phiphones, and 8 (Evidence No. 34) presumed to be used at the time of spraying phiphones;

1. Article applicable to criminal facts;

Articles 60(1)2, 4(1), and 2 subparag. 3(b) of the Narcotics Control Act, Article 30 of the Criminal Act, Article 60(1)2, Article 4(1)2, and Article 2 subparag. 3(b) of the Act on the Control of Narcotics, Etc., Article 58(1)5, Article 3 subparag. 7 (the point of import of marijuana), Article 58(1)3, subparag. 3, and 5 of the Narcotics Control Act, Article 2 subparag. 3 (a) (the point of import of 5 MM-F) of the Narcotics Control Act, Article 58(1)6, Article 4(1), and Article 2 subparag. 3(b) of the Act on the Control of Narcotics, Etc., Article 58(1)3, Article 2 subparag. 6, Article 4(1), and Article 2 subparag. 3(b) of the Act on the Control of Narcotics, Etc.

1. Commercial competition;

Articles 40 and 50 of the Criminal Act [the punishment prescribed in the provisions of the Act on the Control of Narcotics, etc. (psychotropic Affairs) due to the importation of 5-Mo-Fo-deep, Kenya, phiphonephones, and X masterss, and the violation of the Act on the Control of Narcotics, etc. (flavo), which are committed between the crimes of violation of the Act on the Control of Narcotics, etc. (flavoring), which are the largest criminal

1. Selection of punishment;

5-Mo-Fo-Fon Import of Narcotics Control Act: Selection of limited imprisonment penalty;

Offences of violation of the Act on the Control of Narcotics, etc. (flavotion) due to the medication of phiphonephones, X-type medication, and X-type delivery: Selection of imprisonment.

1. Aggravation of concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act [Aggravation of concurrent crimes against the violation of the Act on the Control of Narcotics, etc. (fence) due to the heavy 5-mero- deep import of the penalty]

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (see, e.g., Articles 55(1)3 of the Criminal Act)

1. Suspension of execution;

Article 62(1) of the Criminal Act (Concurrent Consideration of favorable Circumstances among the Reasons for Sentencing below)

1. Confiscation;

Article 67 of the Narcotics Control Act

1. Additional collection:

The proviso to Article 67 of the Act on the Control of Narcotics, etc. [200,000 won for phiphonephones administered as provided in paragraph (1) of the plate = (1.00,000 won for a dose once x 2 times x 80,000 won for an X-gu price administered as provided in paragraph (2)

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

1. Scope of recommendations;

(a) A primary crime;

(i)types;

Type 3 (Narcotic Drugs, Doz. A. and (b), etc.) of the Act on Export, Import, Manufacture, etc. of Narcotics>

(ii)decision of the recommended territory;

Basic Area

(iii) the scope of recommendations;

From 4 up to 7 years;

(b) Second crimes;

(i)types;

Medication, Simple Possession, etc. of Narcotics> Types 4 (narcotics, flag A., etc.)

(ii)decision of the recommended territory;

Basic Area

(iii) the scope of recommendations;

From 1 to 3 years;

(c) Final scope of sentence (the result of the aggravation of multiple offenses (the upper limit of crime 1 + the upper limit of crime 1/2));

From 4 to 8 years from 6 months;

2. Determination of sentence;

The Defendant confessions the instant crime, and is against the Defendant. There is no past record of criminal punishment in the Republic of Korea. The Defendant does not appear to have imported for the purpose of distributing narcotics. This is a favorable circumstance.

Since the crime of narcotics is an act causing a great harm to the society, it is highly necessary to impose severe punishment. It seems that the defendant acquired and used narcotics by utilizing knowledge, etc. that he/she has as a doctor. This is an unfavorable circumstance.

In addition, considering the overall circumstances revealed in the arguments of this case, such as the age, character and conduct, environment, means and result of the crime, circumstances after the crime, and the fact that there are many family members of the defendant who depend on the defendant's livelihood in Hong Kong, the punishment as shown in the order shall be determined within the scope of the sentencing guidelines by law, notwithstanding the scope of recommendations made in the

1. Summary of facts charged

(a) Use of interesting agents containing temporary psychotropic drug ethyl ethyl elements (i.e., g., e., gying agents; hereinafter referred to as “sh”);

Around 00:30 on February 8, 2015, the Defendant, at the Gangnam-gu Seoul, ○○○○○○○○○○○○○○ hotel 1502, located in Seo-gu, Gangnam-gu, Seoul, opened a lid of the Plaintiff’s disease with the Nonindicted Party and used the steam in a way that inhales the steam in co-ownership.

(b) Sheet import;

On March 14, 2015, around 23:05, the Defendant entered the Incheon Central Bureau located in Jung-gu, Incheon, by using an aircraft of galtha CX430, starting from the port of Hong Kong to the port of its offer, concealed two diseases for the Defendant’s travel, and closely imported them by passing through the Incheon International Airport Entry Site Search Team.

2. Determination

A. Grounds for punishment of this part of the facts charged

Article 59(1)5, Article 3 subparag. 5, and Article 2 subparag. 3 (a) of the Act on the Control of Narcotics, Etc. (hereinafter referred to as the “Act”), which applies to the violation of the Act on the Control of Narcotics, Etc. (hereinafter referred to as the “Act”), is Article 58(1)3, Article 3 subparag. 5, and Article 2 subparag. 3 (a) of the Act on the Control of Narcotics, etc. (hereinafter referred to as the “Act”).

Article 5-2 (5) of the Act provides that Article 5-2 (5) of the Act shall apply mutatis mutandis to the handling of temporary psychotropic drugs, and Article 5-2 (5) of the Act provides that Article 3 of the Act shall apply mutatis mutandis to the handling of temporary psychotropic drugs. Accordingly, Article 5-2 (5) of the Act applies to this part of the facts charged.

Article 5-2 (1) of the Act provides that "the Minister of Food and Drug Safety may designate substances, etc. deemed necessary to be treated and controlled as equivalent to temporary narcotics, etc. because they are likely to cause harm to the public health due to misuse or abuse of narcotics, etc." (hereinafter referred to as "materials, etc."). Article 5-2 (2) of the Act provides that "When the Minister of Food and Drug Safety intends to designate temporary narcotics, etc., he/she shall give prior notice of the following matters on the Official Gazette and Internet homepage for at least one month after consultation with the relevant agencies prescribed by Presidential Decree, and when designating temporary narcotics, etc., he/she shall publish the matters referred to in subparagraphs 1 through 3 and 5 on the Official Gazette and on the Internet homepage; 3. Temporary narcotics, etc.; 4. Temporary narcotics, etc., such as temporary narcotics, temporary psychotropic drugs, etc., and Article 5-2 (3) and (4) of the Act provides that "temporary narcotics, etc., such as prior notice period," and Article 5 (3) of the aforesaid provision shall apply mutatis mutandis.

(5) Subparagraph 3 of Article 2 of the Act defines drugs or substances deemed to seriously harm the human body when they are misused or abused, classify them as referred to in item (d) depending on whether they are seriously misused or abused, whether they are used for medical treatment, lack of safety, and whether they have physical or mental dependence. In other words, ① medicines or substances containing them which might not be used for medical treatment and cause severe physical or mental dependence if they are misused or abused, and are used only for medical treatment but also in excess of subparagraph 3 (a) of Article 2 of the Act, ② medicines or substances containing them which might be misused or abused and which contain less than subparagraph 3 (d) of Article 3 of the Act, are less than subparagraph 3 (b) of Article 2 of the Act, and their physical or mental dependence are relatively less than subparagraph 3 (d) of Article 3 of the Act, and are used for medical treatment or abuse of psychotropic substances than subparagraph 3 (d) of Article 3 of the Act.

Pursuant to Article 5-2 of the Act, the Minister of Food and Drug Safety set up the notice of this case 1. d. 56 No. 1. annually, designated the substance as Alkyl ninitrite (Isobuty niitrite is the chemical name of Alkyl niitrite) as temporary narcotics, and classify it into temporary psychotropic drugs referred to in Article 2 subparagraph 3 (a) of the Act.

Therefore, in addition to the above applicable provisions of law, the announcement No. 56 of this case is also applicable to the facts charged.

B. Whether the form of delegation is unconstitutional

According to the above provisions, Article 5-2 of the Act, first of all, punishs substances designated as temporary narcotics in the same way as narcotics, and directly delegates the designation of temporary narcotics to the Minister of Food and Drug Safety instead of issuing laws and regulations such as Presidential Decrees. Article 5-2 of the Act, which is part of the elements of punishment laws, directly delegates the authority to designate temporary narcotics to the Minister of Food and Drug Safety for the purpose of violation

According to the above provisions, records, etc., the following circumstances are recognized.

① The temporary narcotics designation system under Article 5-2 of the Act was newly introduced as the Act was amended by Act No. 10786 on June 7, 2011 to promptly respond to new types of hallucinogenic substances that have a serious adverse effect on national health and health.

(2) The Act directly delegates authority to designate temporary narcotics to the Minister of Food and Drug Safety in the public announcement instead of statutory orders. This requires considerable time to amend the Enforcement Decree of the Act, which is a statutory order, and thus it is urgent to prevent the rapid increase of similar narcotics from causing serious harm to national health and health.

(3) Although temporary narcotics are not prohibited by the Act, but are likely to cause harm to the public health due to misuse or abuse, it is clear that the scope of delegation is limited to narcotics, psychotropic substances, and marijuana, which are narcotics, and if a person has a sound common sense and ordinary legal appraisal, it is sufficiently anticipated that the scope of delegation is limited to narcotics, psychotropic substances, and marijuana.

(4) It is reasonable to view temporary narcotics as specialized and technical matters that are performed by the Minister of Food and Drug Safety in consideration of the structural composition, pharmacological effect (e.g., stimulation, depression, suppression, suppression, etc.), side effects and harmful cases, whether they are brought in and distributed in the Republic of Korea, current status of overseas distribution and regulation, etc. of new hallucinogenic substances or psychotropic substances.

(5) Temporary and provisional measures such as designation of temporary narcotics shall be taken for a specified period after consultation with related agencies.

In full view of these circumstances, Article 5-2 of the Act does not delegate the designation of temporary narcotics, which are part of the elements of punishment laws, to the Minister of Food and Drug Safety, but directly delegated to the public notice, which is an administrative rule, to the Minister of Food and Drug Safety, cannot be deemed to violate the principle of no punishment without the law or the principle of prohibition of comprehensive delegation (see Supreme Court Decision 2014Do14928, Jan. 1

C. Whether the instant announcement deviates from the scope of delegation No. 56

(1) Criteria for determining whether the delegation scope deviates from

The public notice of this case is designated as temporary narcotics of 86 material, including Alkyl nitrite, which is an issue in this part of the facts charged, and the above 86 material is classified as temporary psychotropic drugs under Article 2 subparag. 3 (a) of the Act.

However, as seen earlier, Article 2 subparag. 3 of the Act separates the scope of temporary narcotics from those subject to punishment under Article 2 subparag. 3 of the Act, depending on whether they are likely to be misused or abused, whether they are used for medical treatment, lack of safety, and whether they have physical or mental dependence. The penal provisions also vary depending on how to deal with psychotropic drugs at each stage under items (a) through (d). Article 5-2(2) of the Act provides for the public announcement of matters concerning temporary narcotics’ designation, names of temporary narcotics, temporary narcotics, or temporary marijuana, and temporary narcotics’s designation in the same manner as those under Article 2 subparag. 3 of the Act are applicable mutatis mutandis to the cases of psychotropic drugs, which are deemed to have the same level of punishment as those under Article 2 subparag. 3 (a) of the Act, on the grounds that the temporary narcotics are likely to be subject to punishment, etc., and thus, the same level of punishment as those under Article 5-2 (4) of the Act is likely to be applied mutatis mutandis to the case of new psychotropic drugs.

(2) Whether it corresponds to the psychotropic drugs under subparagraph 3 (a) of Article 2 of the Act

No. 56 of the announcement of this case is divided into temporary psychotropic drugs under Article 2 subparag. 3 (a) of the Act. However, in order to punish Alkyl nitrite equivalent to the psychotropic drugs under Article 2 subparag. 3 (a) of the Act, it is necessary to examine the possibility of misuse or abuse, safety, physical or mental dependence equivalent to the substances under Article 2 subparag. 3 (a) of the Act.

(A) Regarding the mid-to long-term boundary effect

To fall under subparagraph 3 (a) of Article 2 of the Act, it must be substances that affect the human mid-to-date boundary. However, according to the public notice of this case, the pharmacological effect of alkyl nitrite is merely “fluor expansion” and thus, only alkyl nitrite among the said 60 substances did not mention “salkyl nitrite effects or possibility of action.”

According to this, the evidence submitted by the prosecutor alone cannot be readily concluded as a substance that causes dependence by affecting the mid-to long-term system, and there is no other evidence to acknowledge it.

(B) As to the medical use and lack of safety

To fall under subparagraph 3 (a) of Article 2 of the Act, it must not be used for medical treatment and must be substances lacking safety. However, the evidence submitted by the prosecutor alone cannot be readily concluded as substances lacking safety without being used for medical treatment and there is no other evidence to acknowledge it otherwise.

(C) Concerning concerns of misuse and abuse and physical and mental dependence

Article 2 subparag. 3 (a) of the Act must be a substance that has a high potential for misuse or abuse and causes severe physical or mental dependence. However, the evidence submitted by the prosecutor alone cannot be readily concluded as a substance that causes severe physical or mental dependence, and there is no other evidence to acknowledge it.

(3) Sub-decisions

Comprehensively taking account of the foregoing, it is difficult to see Alkyle as at least a substance equivalent to psychotropic drugs under Article 2 subparag. 3 (a) of the Act. Thus, it is null and void as it is beyond the scope delegated by the mother’s law to classify Alkyle under Article 2 subparag. 3 (a) of the Act into temporary psychotropic drugs under Article 2 subparag. 3 (a) of the Act.

3. Conclusion

This part of the facts charged is subject to the annual publication No. 56. However, this is null and void for the same reason as seen earlier. If so, this part of the facts charged constitutes a case where it does not constitute a crime.

Therefore, as to the violation of the Act on the Control of Narcotics, etc. (fence), among the facts charged in the instant case, the acquittal shall be sentenced pursuant to the former part of Article 325 of the Criminal Procedure Act. Of the facts charged in the instant case, the violation of the Act on the Control of Narcotics, etc. (fence) due to a string import is found guilty of the violation of the Act on the Control of Narcotics, etc. (e.g., marijuana) and the violation of the Act on the Control of Narcotics, etc. (e., marijuana), 5-Mo- deep, Kenya, h

Judges Lee Dong-jin (Presiding Judge)