(영문) 서울중앙지방법원 2018.2.8. 선고 2018고합49 판결

However, the execution of each of the above penalties shall be suspended for one year for Defendant A, and for two years for Defendant B from the date this judgment became final and conclusive.

12,000 won from Defendant A and 400,000 won from Defendant B shall be additionally collected.

Reasons

Criminal facts

【Criminal Power】

On January 18, 2018, Defendant A was sentenced to imprisonment for fraud at the Seoul Central District Court for one year and two months, and the above judgment became final and conclusive on January 26, 2018.

【Criminal Facts】

No person shall trade or smoke marijuana.

1. The Defendants’ co-principal

In February 2017, the Defendants smoked on the front day of the 'EE convenience store located in D', Gyeongnam-si, Gyeongnam-si, in a way of spreading one smoke of the marijuana purchased, as described in paragraph 2-A (a) by putting the smoke from the string to the string to the stringer with the fire of the stringer.

2. Defendant B

(a) Purchasing marijuana;

On January 2016, the Defendant, at the G station located in the Seoul Special Metropolitan City Nowon-gu, Seoul Special Metropolitan City, to contact with the seller of narcotics, etc. and the SNS, from which the name he/she could not be known through the Internet Youb search, to purchase marijuana. The Defendant transferred the price of KRW 400,000 to the community credit cooperative account known by the seller. On the same day, around 22:00, the Defendant purchased it by means of finding approximately 5.6 g of marijuana that the said seller parked in the vicinity of the said G station (I, SM5) in front of the Defendant’s vehicle (I, SM5) parked in the vicinity of the said G station.

(b) Smoking marijuana;

On August 15, 2017, at around 19:30, the Defendant smoked in a way that he and she enter the cryp to the cryp in the way that he and she share the smoke of marijuana once in front of the JJ in South-gu, Namyang-gu, Jin-si.

3. Defendant A

A. On February 2017, at around 20:00, the Defendant smoked once, with K, in the same manner as that of paragraph 1, on the road in the city of Gyeongnam-do.

B. On May 2017, at around 20:0, the Defendant smoked once, with K, in the same way as that of paragraph (1) on the road in which he proposed to Gyeongnam-do. At around 16:00 on July 1, 2017, the Defendant smoked once, along with K, in a restaurant parking lot where the trade name in the Geumdong-dong cannot be known at the Namyang-si, Namyang-si, the Defendant smoked in the same way as paragraph (1). The summary of the evidence is as follows.

1. Defendants’ respective legal statements

1. One copy of the interrogation protocol (K) - copy of the decision of K, and one copy of the decision of K;

1. Each narcotics appraisal report (A, A hairs), investigation report (in case of the side of the suspect B and the result of the appraisal);

1. Previous offense: One copy of the judgment rendered by A in fraudulent cases, a certified copy of the judgment (Seoul Central District Court 20173849), and a summary of the information on private cases (Seoul Central District Court 20173849);

1. A report on investigation (calculated additional charges);

Application of Statutes

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

Defendant A: Articles 61(1)4(a) and 3 subparag. 10(a) of the Narcotics Control Act, and Article 30 of the Criminal Act (the occupation of smoking marijuana and the choice of imprisonment)

○ Defendant B: Articles 59(1)7 and 3 subparag. 9 (the point of trade in marijuana) of the former Act on the Control of Narcotics, Etc. (Amended by Act No. 14019, Feb. 3, 2016); Articles 61(1)4(a) and 3 subparag. 10(a) of the Narcotics Control Act; Article 30 of the Criminal Act (the point of trade in marijuana under paragraph (1) of the same Article); Articles 61(1)4(a) and 3 subparag. 10(a) of the Narcotics Control Act; Articles 61(1) and 31(10) of the same Act; Article 30 of the Criminal Act (the point of trade in marijuana under paragraph (2) of the same Article; the choice

1. Handling concurrent crimes;

○ Defendant A: the latter part of Article 37 and Article 39(1) of the Criminal Act

1. Aggravation for concurrent crimes;

○ Defendant A: The aggravated punishment provided for in the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act [the aggravated punishment as provided for in the crime of violation of the Act on the Control of Narcotics, etc. (the severe punishment on July 1, 2017)] ○ Defendant B: the aggravated punishment of concurrent crimes resulting from the trade of marijuana with the largest punishment provided for in the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (the aggravated punishment of each crime is within the scope of adding up the maximum punishment of each crime)

1. Discretionary mitigation;

○ Defendant B: Articles 53 and 55(1)3 of the Criminal Act (hereinafter referred to as “contributive circumstances”)

1. Suspension of execution;

Defendants: each of the Defendants: Article 62(1) of the Criminal Code (General Considerations favorable to the reasons for sentencing below)

1. Additional collection:

Defendants: The proviso to Article 67 of the Narcotics Control Act

[Calculation of Additional Imposition Charges by Defendant and Grounds therefor]

○ Defendant A: 12,00 won (i.e., the 1st smoking price of 3,000 won for each marijuana and X 4 times in total): Defendant B: 400,000 won (i.e., the purchase price of 5.6g for marijuana, which was purchased and smoked, KRW 400,000) for sentencing

1. Defendant A

(a) Scope of applicable sentences under the law: Imprisonment with prison labor for not more than seven years and six months, and the failure to apply sentencing guidelines: Each of the above offenses is a concurrent offense relationship between a crime for which judgment becomes final and conclusive and a crime under the latter part of Article 37 of the Criminal Act, and thus, the sentencing guidelines shall not apply. The decision of sentence: One year of suspension of execution

Since narcotics-related crimes are likely to have a serious adverse effect on society as a whole, such as impairing public health or inducing other crimes, as well as avoiding the body and mind of an individual, it is necessary to punish the defendant corresponding to his responsibility.

However, the fact that the amount of marijuana smoked by the defendant is not large, and that the defendant has no record of the same kind of crime is favorable to the defendant. The equity should be taken into account when the criminal facts of this case are judged together with the criminal facts of the previous offense, which are concurrent crimes in the latter part of Article 37 of the Criminal Act.

In addition to the above circumstances, the defendant's age, character and conduct, intelligence and environment, motive, means and consequence of the crime, circumstances after the crime, etc., and the various sentencing factors in the trial process, such as the records of this case and the circumstances after the crime, shall be determined like the order.

2. Defendant B

(a) Scope of punishment by law: Imprisonment with prison labor for not less than six months but not more than 20 years;

(b) Scope of recommendations;

○ Crimes of violation of the Act on the Control of Narcotics, etc. ( marijuana) due to the trade in marijuana

[Determination of Types] Reductions of Type 2 (Sariju, Flagbb and item (c), etc.): Purchasing or receiving for medication, simple possession, etc.

[Recommendation and Scope of Recommendation] Reduction Area, Imprisonment with prison labor for not less than eight months but not more than one year and six months;

○ Crimes of violation of the Act on the Control of Narcotics, etc. ( marijuana) due to smoking in marijuana

[Determination of Types] No types 2 (mariju, flame, d. and (e), etc.) (Special Anhist) shall be included in narcotics crimes, medications, etc.)

[Recommendation and Scope of Recommendation] Basic Field, Imprisonment for not less than eight months, but not more than one year and six months;

○ Scope of recommending punishment based on the standards for handling multiple crimes: Imprisonment with prison labor for not less than eight months but not more than two years and three months; 2 years of suspension of execution for ten months;

Since narcotics-related crimes are likely to have a serious adverse effect on society as a whole, such as impairing the public health or inducing other crimes as well as impairing the body and mind of an individual, it is necessary to punish the defendant with the responsibility corresponding to the responsibility. The fact that the amount of marijuana purchased and smoked by the defendant is not large, and that the defendant has no record of punishment other than fines, etc. are favorable to the defendant.