(영문) 서울중앙지방법원 2018.7.20. 선고 2018고합491 판결

3,107,50 won shall be collected jointly from the Defendants, and 6,703,50 won shall be collected from the Defendants A. The Defendants shall be ordered to pay an amount equivalent to the above additional collection charges.

Reasons

Criminal facts

【Criminal Power】

On February 19, 2016, Defendant B was sentenced to four months of imprisonment with prison labor for night building intrusion larceny at the Seoul Northern District Court (Seoul Northern District Court) on July 8, 2016, and the execution of the said sentence was terminated on July 8, 2016. On June 15, 2017, Defendant B was sentenced to two years of imprisonment with prison labor for occupational embezzlement, and the said judgment became final and conclusive on June 23, 2017, and is still under suspension of execution

【Criminal Facts】

1. The sole criminal conduct of Defendant A;

(a) Import of marijuana from February 2, 2018;

The Defendant informed C of the domestic delivery and addressee of marijuana in the U.S., and made foreign exchange remittance of USD 980 for import price, and C entered approximately 35 g of marijuana in the U.S. as the addressee D, 'Seoul E and F by means of international specialty mail', 'Seoul E and F by means of international specialty mail, and sent it to the Republic of Korea by means of international specialty mail (NO: G). The above international specialty mail arrived at the Incheon State Port on February 8, 2018, at HI around 19:44, around February 19, 2018. Since then, the Defendant received marijuana delivered to the above several purposes on February 10, 2018.

Accordingly, the Defendant imported approximately 35g of marijuana from C.

(b) Import of marijuana from February 21, 2018;

The Defendant informed C of the domestic delivery and addressee of marijuana in the U.S., and sent USD 970 to C in foreign exchange remittance. C entered approximately 35 g of marijuana in the U.S. into the addressee J, Dobong-gu Seoul E and F by means of international specialty mail, and sent it to the Republic of Korea via international specialty mail (K). The above international specialty mail arrived at the Incheon State of supply by LM around 13:49 on February 21, 2018. On February 22, 2018, the Defendant received the marijuana delivered to Kwikset service.

Accordingly, the Defendant imported approximately 35g of marijuana from C. The import of marijuana from March 3, 2018.

The Defendant informed C of the domestic delivery and addressee of marijuana in the U.S., and sent approximately 4.5 million U.S. dollars to C, and C entered approximately 150 g of hemp in the U.S. as the addressee J, Seoul Gangnam-gu 0, and P by means of international specialty mail, and sent it to the Republic of Korea using international specialty mail (demand NO). On March 3, 2018, the above international specialty mail arrived at the Incheon State of supply. On March 5, 2018, the Defendant received marijuana delivered to Kwikset service, which was delivered to the above several goals on March 5, 2018.

Accordingly, the Defendant imported approximately 150g of marijuana from C.

2. Import of marijuana from March 30, 2018;

A. Defendant A

The Defendant informed Co-Defendant B of the domestic delivery place and addressee of marijuana, etc. known to Co-Defendant B in the U.S., and deposited the amount of USD 2750 (the foregoing revision shall be made to the extent that it does not interfere with Defendant A’s exercise of his/her right to defense according to the details of foreign exchange transaction (Evidence No. 487-490 pages) which is objective evidence). Around March 3, 2018, around 28, the Defendant entered approximately 150 g of marijuana in the U.S. as an addresseeR, the purpose of this amendment, and sent it to the Republic of Korea using the International Special Postal Mail Co-Defendant B (NO). On March 30, 2018, the above international special class No. 17:26, the Defendant received the above purport on April 2, 2018.

Accordingly, the Defendant imported approximately 150g of marijuana from C.

B. Defendant B

On March 22, 2018, in order to assist Co-Defendant A to import marijuana in the U.S., the Defendant informed Co-Defendant A of the address of the above SA building without a resident of the co-Defendant A so that Co-Defendant A can receive it by international express mail while tracking the investigation agency. Accordingly, the Defendant aided and abetted Co-Defendant A to commit the crime of importing marijuana.

3. On April 20, 2018, Defendant A, who imported marijuana, proposed that Defendant B, who was well aware of the foregoing S building, would receive an additional marijuana in the U.S. using the said method, be exposed to the receipt by an international mail repeated, and that Defendant B would receive an international mail instead of the international mail, and that Defendant B would be involved in the process of receiving marijuana by accepting it.

Since then, Defendant A ordered C in the United States to pay the import price of marijuana 255 g, and Defendant B demanded C to confirm that the S-building T is not non-existent, and the delivery place is corrected to Y. Since April 17, 2018, C indicated approximately 255 g of marijuana as the addressee J, and the purport of Seoul S-S-gu S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S.

Accordingly, the Defendants conspired to import approximately 255g of marijuana from C.

[The facts charged of the instant case indicate that Defendant A or Defendants imported marijuana “in collusion with C in the United States.” However, the general provisions of the Criminal Act on accomplices do not apply to cases where two or more persons are required to commit a crime (see, e.g., Supreme Court Decision 2013Do6969, Jan. 16, 2014). Although the import of marijuana does not always require the existence of an act to be hostile, the said facts charged are that Defendant A or Defendants purchased and imported marijuana from Defendant A or Defendants, and thus, the said act of import of Defendant A or Defendants did not constitute an act to be in an opposite relation to the sale of C. In such a case, the Defendant or Defendants conspired with C while importing marijuana (see, e.g., Supreme Court Decision 2015Do7996, Sept. 10, 2015). “Defendants” in collusion with C in collusion with C to the extent that there is no risk of actual disadvantage to the Defendant’s defense right to defense” in accordance with the aforementioned legal doctrine.

[Defendant A]

1. Defendant A’s legal statement

1. A report on the detection of customs clearance, a photograph of detection and an appraisal report;

1. B mobile phone hosting photographs, information on the integration of postal items related to marijuana sealed on March 30, 2017, marijuana photographs taken around October 23, 188 stored in a mobile phone, marijuana photographs stored in a mobile phone on February 1, 188, the foreign exchange remittance photographs of February 21, 18 stored in a mobile phone, the foreign exchange remittance photographs of February 21, 18, the foreign exchange remittance photographs of February 8, 18, the persons of February 21, 21, the mail records of March 3, 201, and the data relating to AC Bank transactions;

1. Each existing evidence of subparagraph 1 or 2 (Seoul Central District Prosecutors' Office No. 2517, 2018) that has been seized;

[Defendant B]

1. Defendant B’s partial statement

1. Partial statement of the witness A;

1. The second and third suspect examination protocol of the prosecution against A;

1. A report on customs detection, a photograph of detection and a response to appraisal;

1. B mobile phone hosting photographs;

1. Previous convictions 1 and 2 (No. 2517 pressured by the Seoul Central District Prosecutors' Office, 2018) : Criminal records, Supreme Court rulings 2016Da3755 Decided June 15, 2017, Supreme Court rulings 2016Da3755 Decided June 15, 2017, output of the progress of the case on the Internet homepage of the Supreme Court, and the application of statutes on the status of personal confinement

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

Defendant A: Articles 58(1)5 and 3 subparag. 7 of the Narcotics Control Act (the import of marijuana from February 8, 2018, February 21, 2018, March 3, 2018, and March 30, 2018), Articles 58(1)5 and 3 subparag. 7 of the Narcotics Control Act, Article 30 of the Criminal Act (the import of marijuana from April 20, 2018), and selection of limited imprisonment types.

○ Defendant B: Article 58(1)5 and Article 3 subparag. 7 of the Narcotics Control Act; Article 30 of the Criminal Act; Article 58(1)5 and Article 3 subparag. 7 of the Narcotics Control Act; Article 32(1) of the Criminal Act (the aid and abetting import of marijuana); Article 32(1) of the Criminal Act (the aid and abetting import of marijuana); selection of a limited term of imprisonment

1. Aggravation for repeated crimes;

Defendant B: the proviso to Article 35 and the proviso to Article 42 of the Criminal Act

1. Discretionary mitigation of Defendant B: Articles 32 (2) and 55 (1) 3 of the Criminal Act / [the case of aiding and abetting the violation of the Act on the Control of Narcotics, etc.]

1. Aggravation for concurrent crimes;

Articles 37 (former part), 38 (1) 2, and 50 (in the case of Defendant A, the punishment prescribed by the Act on the Control of Narcotics, etc. (mathal) by the import of marijuana from April 20, 2018 with the largest criminal situation, and the punishment prescribed by the Act on the Control of Narcotics, etc. (mathal) with respect to Defendant B, shall be aggravated within the limit prescribed by the proviso of Article 42 of the Criminal Act) of each Criminal Code

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Code (The following consideration shall be taken into account in favor of the reasons for sentencing)

1. Confiscation;

The main sentence of Article 67 of the Narcotics Control Act

1. Additional collection:

The proviso to Article 67 of the Act on the Control of Narcotics, etc. [Calculation of Additional Charges]

Joint collection from the Defendants: 3,107,50 won for the import of marijuana from March 30, 2018 (i.e., US$2,750 US$1,1301), and 255 g for marijuana, which was sealed by the crime committed on April 20, 2018, shall not be collected as a penalty, since it was confiscated.

○ Defendant A: 1,107,40 won for the import of marijuana as of February 8, 2018 (US$ 980 x 1,130 ) + KRW 1,096,100 for the import of marijuana as of February 21, 2018 (= US$ 970 $ 1,130) + KRW 4,500 for the import of marijuana as of March 3, 2018 = 6,703,500 in total.

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Judgment on Defendant B and the defense counsel’s assertion

1. Summary of the assertion

A. As to the import of marijuana from March 30, 2018

Defendant B merely informed Defendant B of the empty address upon Defendant A’s request, and did not know at all the fact that the goods delivered to the above address were marijuana. Therefore, there was no intention to assist.

B. As to the import of marijuana from April 20, 2018

Defendant B did not have conspired with Defendant A to receive marijuana, and upon Defendant A’s request, brought marijuana from the aircraft to the ground and reached the age of it, and then received it on behalf of the domestic delivery site, and did not know at all the specific matters, such as the amount and price of the imported marijuana. Therefore, even if Defendant B could be an accessory to the crime committed by Defendant A, it does not constitute a co-principal.

2. Determination

A. As to the import of marijuana from March 30, 2018, the prosecutor’s statement that corresponds to the facts charged by Defendant A, a principal offender, is reliable as follows, Defendant B, despite being aware of the import of marijuana from Defendant A, can sufficiently be recognized that Defendant B, despite being aware of the import of marijuana from Defendant A, had an empty address to facilitate the above crime. This part of Defendant B’s assertion is rejected.

1) On March 30, 2018, Defendant A consistently made a statement to the effect that he had received the address from B for the first time before issuing an order for marijuana on March 30, 2018, Defendant A offered that he would refuse to receive it first, and offered that he would receive it first, and that he would receive it at the time when he would receive it, “I would receive it at the time,” and “I would like to receive it at the time,” and “I would like to receive it directly, and it would be too difficult to accept it on behalf of B, and received it on behalf of B, even at the address of refusal (Evidence record 237, 238, 417 pages).”

2) However, at the time of import of marijuana from March 30, 2018, Defendant A made a statement to the effect that Defendant A appeared as a witness in this court and stated that “at the time of import of marijuana, at the time of request of Defendant B for an empty address, the phrase “the delivery of marijuana was not possible,” and that “the delivery of marijuana was memory.”

However, the prosecutor's statement by the defendant A is not consistent and its purport is unclear, such as "the defendant A would receive 1 million won or more, and he would refuse to request it and only address." On the other hand, the court's statement is not consistent, such as "I would know whether I would like to know that I would fit for her memory about the part," and "I would not memory about mari". The reasons for reversal of the statement by the prosecutor's office were arrested by the prosecutor's office and uneasiness at that time, and the statement was frightened twice a day," and "I would not easily see that I would like to see that I would like to see that I would like to see that I would not satisfe twice a day," but that I would not easily see that I would like to have satisfe the fact that I would not have sat the prosecutor's reply and that I would not have satisfe it."

3) Meanwhile, as revealed in accordance with the evidence adopted and examined by the court, Defendant B worked together in Bodrid Paf, and was in close relationship with Defendant A for about one year and six months prior to the instant case, and had exchanged USD 6,804 with Defendant A upon Defendant A’s request on February 21, 2018 in order to substitute for a foreign exchange remittance. In light of the relationship between the Defendants, it is difficult to understand that Defendant B requested an address where Defendant B was able to receive a delivery from Defendant A without any confirmation as to the reasons why Defendant B requested such an exceptional request. This also supports the credibility of Defendant A’s prosecutor’s statement.

B. As to the import of marijuana from April 20, 2018

1) Relevant legal principles

In relation to co-offenders who are jointly engaged in a crime, the conspiracy does not require any legal punishment, but is only a combination of two or more persons to jointly process a crime and realize the crime. Even if there was no process of the whole conspiracy, if the combination of intent is made in order or implicitly through the agreement among several persons, the conspiracy relationship is established, and even if there was no direct participation in the conduct of the crime, the person who is not directly involved in the conduct of the crime is criminal liability as a co-principal against the other co-principal (see, e.g., Supreme Court Decision 2004; 6, 2004Do520, Apr. 24, 200).

2) Determination

A) Comprehensively taking account of the following circumstances revealed by the evidence adopted and examined by this court, Defendant B’s criminal liability as a co-principal inasmuch as it is sufficiently recognized that Defendant A had committed a criminal act with the intent of co-processing with respect to the imported criminal of marijuana, even without the intent of joint processing, even if Defendant B did not engage in the criminal act with respect to the import of marijuana from April 20, 2018.

In other words, in the course of the crime that Defendant A sent “S building Y,” which is an empty place, to the seller of marijuana, to the delivery site, and sent the marijuana delivered to another place, to Kwikset service, the crime was ultimately constituted that Defendant B would receive it. In the course of the crime that was conducted professionally and formally to avoid the investigation agency’s tracking, Defendant B expressed in advance the address of the empty place to be called into the hemp delivery site, and arrived at the place, and directly received the marijuana again transmitted to Kwikset service. In addition, Defendant B confirmed that the S Building C, which was previously known as an empty place, was no longer used to commit the crime on April 20, 2018, and instead, it appears that Defendant B would have taken measures to take the Y-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S.

The act of Defendant B ought to be deemed to have a functional control over the act by the joint will with Defendant A.

B) As seen above, insofar as Defendant B, prior to the dispatch of marijuana, notified Defendant A of the address to receive the contact of the hemp and conspired with Defendant A to receive it instead, it is difficult to view that he participated in the process after the completion of the import of marijuana, as long as he participated in the process after the completion of the import of marijuana.

C) Defendant B asserts that only the speech that marijuana would come in the United States, and that he did not accurately know the amount of imported marijuana and the price therefor. However, “import” under the Act on the Control of Narcotics, Etc. means any act of bringing in the Republic of Korea from a foreign country, irrespective of their quantity and purpose (see Supreme Court Decision 97Do1271, Jul. 11, 1997). As such, Defendant B’s joint principal liability is not established, unless Defendant B was aware that marijuana was entering the United States at least, and as long as Defendant B was clearly aware that it was entering the Republic of Korea, it may constitute joint principal liability.

D) Defendant B’s assertion on this part is rejected.

Reasons for sentencing

1. The scope of punishment by law;

(a) Defendant A: Imprisonment with prison labor for a period of two years to six months from June 22;

(b) Defendant B: Imprisonment with prison labor for a period of two years to six months to twenty five years;

2. Scope of recommended sentences according to the sentencing criteria;

A. Defendant A

(i) 1, 2, or 3 offences;

[Determination of Types] Export and Import Manufacturing, etc.

【Special Convicted Person】

[Scope of Recommendation] Two to Four years of imprisonment (Basic Area)

2) The scope of final sentence due to the aggravation of multiple crimes: Imprisonment with prison labor for two to seven years (four years) (the upper limit of the first crime + the upper limit of the second crime + 1/2 (2 years) + 1/3 (1/4 months) of the upper limit of the third crime)

(iii) the range of modified recommendations: Imprisonment between June and July, 2 years (the lower limit of the applicable sentences under law is higher than the lower limit of the recommended sentences, based on the lower limit of the applicable sentences);

B. Defendant B

1) Basic crimes

[Determination of Types] Export and Import Manufacturing, etc.> Types 2 (mariju, fac. (C.)

【Special Convicted Person】

[Scope of Recommendation] Two to Four years of imprisonment (Basic Area)

2) Scope of recommendation according to the standards for handling multiple crimes: Imprisonment with prison labor for at least two years (limited to the lower limit, since the relationship between the basic crime and the violation of the Act on the Control of Narcotics, Etc. (the Sentencing) to which the guidelines for sentencing

(iii) the range of revised recommendations: Imprisonment for at least two years and six months (at least a minimum of the applicable sentencing, given that the minimum of the applicable sentencing is higher than the recommended sentencing, the minimum of the applicable sentencing range shall prevail);

3. Determination of sentence;

The crime of narcotics is a serious crime that has a negative impact on the society as well as on the body and mind of an individual due to their decliation and toxicity. In particular, the act of importing narcotics, etc. is likely to cause serious social harm by means of circulation in the market, etc. For the purpose of sale, Defendant A imported marijuana in large quantity over several occasions through sales books in the U.S. for the purpose of sale. In light of the circumstances leading the import of marijuana, the quantity of imported marijuana, and the circumstances before and after the crime, etc., the crime is heavy. In fact, Defendant A appears to have distributed some of the marijuana imported by Defendant A. In particular, it is inevitable for Defendant A to take part in the crime, while leading the import of marijuana on March 30, 2018 and April 20, 2018, Defendant A received the aforementioned import order from Defendant A to assist and assist the Defendants in the instant crime at one’s own time during the suspension of the execution of the execution of the sentence of Defendant A’s importation of marijuana, and Defendant B did not assist and assist the Defendants at one’s at the same time during the suspension of execution.

However, marijuana imported as a result of the crime committed on April 20, 2018 was confiscated and not distributed during the process of the seizure. Defendant A is both aware of and against all the crimes, and there was no previous conviction beyond the same kind of crime or fine. Defendant B was only involved in the process of the receipt of marijuana, and did not participate in the process of the receipt of marijuana, and thus, was relatively weak to the degree of participation in the crime. The Defendants’ family members and branch people want to take the Defendant’s preference against the Defendants, and thus, the Defendants’ social ties relationship seems to be good. The above circumstances are favorable to the Defendants.

In addition, the conditions for sentencing, such as the age, character and conduct, environment, motive, means and method of committing the crime, and the scope of recommended punishment according to the sentencing guidelines, shall be determined as per the order, comprehensively taking into account the various circumstances.

Judges

The presiding judge and the deputy judge;

Regular Category of Judges

For judges the last place:

Note tin

1) The same applies to the trading base ratio of the publicly notified exchange rate (see, e.g., Supreme Court Decision 2001Do4829, Nov. 27, 2001) around the day when the judgment was rendered.

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