Defendant

Defendant

Gambage

Public-service Advocates

Seoul Central District Court Decision 2005Gohap3890 Delivered on August 31, 2005

The judgment of the court below is reversed.

The prosecution of this case is dismissed.

1. Summary of grounds for appeal;

(a) Ship investigation;

The crime of this case is an offense caused by the so-called naval investigation, which was caused by Nonindicted 1’s request by Nonindicted 5, etc. for the rescue of phiphones to the Defendant via Nonindicted 5, etc., which is the information source, and thus, cannot be punished. However, the lower court erred by misapprehending the legal doctrine regarding the prosecution of this case on the premise that the prosecution of

B. Error of mistake

In addition, the Defendant did not know Nonindicted 4 and did not know that Nonindicted 4 and Nonindicted 5 conspired to trade phiphones, and even though he did not arrange to trade phiphones, the Defendant committed an illegal act that found the Defendant guilty of charges by misunderstanding the facts of the lower court.

C. Unreasonable sentencing

In light of the background of the instant crime and the fact that the Defendant voluntarily surrenders, etc., the sentence of the lower court is too unreasonable.

2. Determination

A. Summary of the facts charged

Notwithstanding that the Defendant is not a narcotics handler, the Defendant:

On February 22, 2005, at around 19:00 (the prosecutor charged a charge with specifying the date and time of the crime as 19:00 on February 22, 2004, but it is evident that it is a clerical error), Nonindicted 1 asked Nonindicted 3 to seek a psychotropic drug mecopon (hereinafter “copon”), and asked Nonindicted 3 to seek a mecopon, and request Nonindicted 5 and Nonindicted 3 to sell a meopon. On February 24, 200 through Nonindicted 3, Nonindicted 200, Nonindicted 4 and Nonindicted 50,000 meopon in front of the Sungnam-dong, Sungnam-gu, Sungnam-gu, Seoul Special Metropolitan City, around 18:00, the prosecutor arranged to sell and sell a meopon in KRW 64:6726,000,000,000,000,000.

B. Determination as to the assertion of the vessel investigation

(1) It is separate from the fact that a method of investigation, which simply provides an opportunity to commit a crime to a person who has the criminal intent or facilitates the commission of a crime, may be permitted depending on the case where there is a mere method of investigation, which leads to the arrest of a person who does not have the original criminal intent by means of deception, trick, attack, etc., and thus inducing the criminal intent cannot be exempted from the illegality of a crime, and a prosecution based on such naval investigation constitutes a case where the procedure is null and void in violation of the provisions of law (see Supreme Court Decision 2005Do1247, Oct. 28, 2005).

(2) 원심이 적법하게 조사·채택한 증거와 피고인, 당심증인 공소외 2의 이 법정에서의 진술에 의하면, ㈎ 피고인은 1999. 6. 10. 서울지방법원 서부지원에서 특정범죄가중처벌등에관한법률위반(절도)죄로 징역 3년, 보호감호 7년을 선고받아 2002. 5. 10. 청송교소도에서 그 형의 집행을 종료하고 2004. 4. 23. 청송보호감호소에서 가출소한 후 양곡소포장 업체인 공소외 6 주식회사의 대표이사로 근무하여 온 사실, ㈏ 한편, 공소외 1은 2004. 6. 29.경 청송보호감호소에서 출소한 후 공소외 7을 통하여 공소외 2를 알게 되어 가깝게 지내오면서 2005. 2. 초순경부터는 공소외 2의 집에서 공소외 2와 함께 거주하여 왔는데, 공소외 2는 서울중앙지방검찰청의 정보원으로 활동하여 오면서 5차례 가량 마약수사에 협조하여 마약사범을 검거한 포상금을 수령하기도 한 사실, ㈐ 청송교도소에서 복역하면서 피고인을 알게 된 공소외 1은 2005. 2월 초순경부터 10여 차례에 걸쳐 피고인에게 “아는 여자가 필로폰을 구입하려고 하니 필로폰을 구해 달라”고 부탁하자, 피고인은 공소외 1의 부탁을 거절하여 오다가 2005. 2. 22. 청송보호감호소에서 만나 알고 지내던 공소외 3에게 필로폰을 매수할 수 있는지의 여부를 문의하게 된 사실, ㈑ 피고인은 2005. 2. 22. 19:00경 공소외 3으로부터 “필로폰 20그램을 6~7백만 원에 판매하겠다는 사람이 있다”는 전화를 받자 공소외 1에게 이러한 사실을 알려 주었고, 피고인의 연락을 받은 공소외 1은 공소외 2에게, 공소외 2는 서울중앙지방검찰청 마약수사관에게 이러한 사실을 전달하였는데, 당시 마약수사관으로부터 필로폰을 위장매수할 자금을 마련하지 못한다는 말을 들은 공소외 2는 필로폰을 매수할 자금을 마련하지 못하였다는 이유로 공소외 1로 하여금 필로폰 거래를 연기하게 한 사실, ㈒ 필로폰을 위장매수할 자금이 마련되자, 공소외 1은 2005. 2. 23. 피고인과 마약을 거래하기 위하여 다음날인 2. 24. 10:00경 성남 모란시장 근처에서 만나기로 약속한 다음 같은 달 24. 06:00경 공소외 2에게 이러한 사실을 알려주었고, 공소외 2는 같은 날 09:00경 마약수사관에게 이를 제보하여 마약수사관이 위장매수자금을 소지하고 동행자로 위장한 가운데 피고인은 같은 날 10:00경 공소외 1, 공소외 1이 필로폰 구매자라고 소개한 공소외 2 외 1명과 함께 성남시 중원구 성남동 모란역 부근 노상에서 공소외 3을 만나게 된 사실, ㈓ 그런데 필로폰 매도인인 공소외 4가 매수인인 공소외 2 등을 직접 만나 거래하기를 꺼려하는 등 쉽게 거래가 이루어지지 아니하자, 피고인은 같은 날 13:00경 먼저 서울로 돌아가 버렸고, 피고인이 돌아간 다음에도 공소외 3은 계속하여 거래를 알선하여 같은 날 18:00경 공소사실 기재와 같이 공소외 4로 하여금 공소외 2에게 필로폰을 판매하도록 하던 중 현장에 잠복 중인 마약수사관에게 검거된 사실, ㈔ 공소외 2는 마약수사관에게 공소외 1이 자신을 도와 필로폰 매매에 관한 정보를 제공한 것으로 진술하여 공소외 1에 대한 수사가 이루어지지 아니하도록 하였고, 위 필로폰 매매에 관한 정보를 제공하여 마약사범을 검거한 포상금으로 100만 원을 지급받은 사실을 인정할 수 있다.

(3) According to the above facts, the defendant is deemed to have committed the crime of this case directly by the owner of the non-indicted 1, and first, it is examined that the non-indicted 1 had a relation with the investigation agency or at least with the investigation agency, and whether the defendant had a criminal act, regardless of whether or not he had a relation with the investigation agency, the non-indicted 2 had a criminal act as an information member of the Seoul Central District Prosecutors' Office at the trial, but the non-indicted 1 had a criminal act in the court, but the non-indicted 1 had a criminal act against the defendant, and the non-indicted 1 had a criminal act against him from the beginning of February 22, 2005 upon the request of the non-indicted 1 to the effect that the non-indicted 1 had been informed of the fact that the non-indicted 1 had purchased the narcotics, and reported it to the Seoul Central Prosecutors' Office.

However, on February 205, when Nonindicted Party 1 asked the Defendant to purchase and sell phones, Nonindicted Party 1 was in a very pro rata relationship with Nonindicted Party 2, such as intentionally leaving Nonindicted Party 2’s office at the time of Nonindicted Party 2’s request, and even according to Nonindicted Party 2’s statement, Nonindicted Party 1 was aware of the fact that Nonindicted Party 2 would have been able to purchase and sell phones from the Defendant; ② Nonindicted Party 1 was informed of the fact that Nonindicted Party 1 would have been able to purchase and sell phones from the Defendant; ③ Nonindicted Party 2 was allowed to inform Nonindicted Party 2 of such fact and prepare a disguised fund for the purchase and sale of phones to Nonindicted Party 1’s request; ③ Nonindicted Party 1 was accompanied by Nonindicted Party 2 at the time of Nonindicted Party 1’s request for the purchase and sale of phones, but it appears that Nonindicted Party 1 would have been aware of this fact; ④ Nonindicted Party 1 would have attempted to purchase and sell phones from the Seoul Central Prosecutor’s Office.

Therefore, even though the investigative agency was not directly leading the defendant to commit the crime, since the non-indicted 1 who conspired with the non-indicted 2 or the non-indicted 2, which caused the information of the investigative agency, had attempted to commit the crime, it is reasonable to view that the crime of this case was committed by the use of a

(4) Next, as alleged by the Defendant, whether the crime of this case was caused only by the use of a vessel by an investigative agency, as alleged by the Defendant. ① Although the Defendant had been subject to punishment by larceny, etc., the Defendant did not have any record of committing the crime previously committed, there was no fact that the Defendant had committed the crime of larceny, etc.; ② Nonindicted 2, etc., the information basis of the Seoul Central District Prosecutor’s Office, who was the Seoul Central District Public Prosecutor’s Office, arrested the Defendant as a drug offender and asked the Defendant to purchase the phone more than 10 times with planned access to the Defendant despite the Defendant’s continued refusal, and the Defendant appears to have arranged the purchase of phone at the time of the crime of this case, rather than with Nonindicted 1’s request, as described in the facts charged, at the time of the crime of this case. ③ Nonindicted 3, the Defendant, who was led to the instant investigation agency, was not aware of the fact that the Defendant had been engaged in the sales of phone at the time of the crime of this case.

(5) Thus, the prosecution of this case constitutes a case where the prosecution procedure under Article 327 subparagraph 2 of the Criminal Procedure Act is null and void in violation of the provisions of law, since the investigative agency allowed the defendant to commit a crime by inducing the criminal intent of the defendant who does not have the criminal intent to commit the narcotics crime, and the prosecution of this case cannot be deemed as lawful exercise of the right of prosecution.

Nevertheless, the judgment of the court below which found the defendant guilty of the facts charged of this case is erroneous in the misunderstanding of legal principles as to the legality of the indictment procedure, and the defendant's assertion

3. Conclusion

Therefore, the judgment of the court below shall be reversed in accordance with Article 364(6) of the Criminal Procedure Act, and the judgment shall be rendered again as follows.

The summary of the facts charged of this case is the same as Article 2-A, and as seen in Article 2-2-b, the public prosecution of this case is null and void in violation of the provisions of law. Thus, the public prosecution of this case is dismissed in accordance with Article 327-2 of the Criminal Procedure Act.

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

Judges Heung-han (Presiding Judge)