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The part of the judgment of the court below against Defendant A shall be reversed.
Defendant
A shall be punished by imprisonment with prison labor for not less than two years and six months.
Reasons
1. Summary of grounds for appeal;
A. Defendant A1) Mental and physical disorder (as to the judgment of the court below No. 2), the Defendant committed each crime of the judgment of the second instance in the state of lacking the ability to discern things or make decisions due to the influence of drugs (phiphones) or alcohol.
2) Illegal sentencing (as to the judgment of the court below Nos. 1 and 2)
B. Defendant D1) misunderstanding the fact (as to the judgment of the court below No. 1), the Defendant merely delivered approximately 0.15g philopon to E on October 22, 2016, and did not receive and sell money.
2) Improper sentencing (as to the judgment of the court of first instance)
2. Determination
A. Defendant A (1) We examine ex officio prior to the judgment on the grounds for appeal ex officio.
Defendant
A filed each appeal against the judgment of the court below, and this court decided to hold the above two appeals together with other appeals cases.
Defendant
The judgment of the court below in the first and second judgment against A is a concurrent crime under the former part of Article 37 of the Criminal Act, and a single sentence should be imposed in accordance with Article 38(1) of the Criminal Act. Thus, the judgment of the court below cannot be maintained as it is.
However, the argument about Defendant A’s mental and physical disorder in the judgment of the court below is still subject to the judgment of the court of this Court.
2) In full view of the details and methods of the original judgment regarding the assertion of mental and physical disorder, the Defendant cannot be deemed to have reached the crime under the lack of capacity to discern things or make decisions, taking account of the following factors: (a) the details and the conduct of the crime before and after the crime.
Defendant A’s assertion that he was in a state of mental and physical weakness at the time of crime is rejected.
B. Defendant D1) The following circumstances revealed by the evidence duly adopted and investigated by the lower court regarding the assertion of mistake of facts, namely, ① from the investigative agency to the court of the lower court, the Defendant consistently stated that “E deposited KRW 300,000 in the BY account designated by Defendant D, and purchased KRW 0.15g philopon to the said Defendant,” and ② E.