(영문) 서울중앙지방법원 2006. 9. 29. 선고 2006노1561 판결

A total of 14.8g (excluding appraisal expendable volume, No. 1, No. 2) of seized white papers, vinyl paper, cremation paper, etc. (Evidence No. 3) shall be confiscated from Defendant 1.

1,50 won shall be additionally collected from Defendant 2.

The prosecutor's appeal is dismissed.

Reasons

1. Summary of grounds for appeal;

(a) A prosecutor;

(1) As to the dismissal of prosecution in the judgment below

Based on the result of the appraisal of Defendant 1’s hair, the prosecutor indicted Defendant 1 as a medication of Mespopic (hereinafter “Mespopic”). In light of the characteristics of the narcotics crime, if the crime was specified as above, it should be deemed that the facts charged were specified. However, the court below dismissed this part of the prosecution on the ground that the facts charged was not specified. Thus, the part dismissing the prosecution among the judgment below is erroneous in the misapprehension of legal principles as to the specification of the facts charged.

(2) As to the non-guilty part of the judgment below

According to the evidence submitted by the prosecutor, although it is sufficient to find the Defendants guilty of each charge of innocence, the lower court rendered a judgment of not guilty of each of the above charges by misunderstanding the facts.

B. Defendants

(1) misunderstanding of facts (Defendant 2)

Although Defendant 2 did not have smoked as stated in the facts charged between December 1, 2005 and December 10, 2005, Defendant 2 found Defendant 2 guilty by mistake of facts, and found Defendant 2 guilty.

(2) Unreasonable sentencing

The sentence imposed by the court below against the Defendants is too unreasonable.

2. Determination

A. Determination of the Prosecutor’s assertion

(1) Rejection portion

(A) Summary of the facts charged and the judgment of the court below

The summary of this part of the facts charged is as follows: (a) between the Hanman of August 2005 and November 20, 2005, Defendant 1: (b) was administered in a way of dilution with the volume of philophones in the beer, or dilution with a disposable injection machine; and (c) was administered by means of injection with his arms during the period from August 2005 to November 20, 205.

The court below dismissed the prosecution on the ground that the above facts charged did not meet the requirements under Article 254 (4) of the Criminal Procedure Act and did not specify it.

(B) Judgment of the court below

Article 254(4) of the Criminal Procedure Act provides, “The facts charged shall be specified by specifying the time, time, place, and method of a crime.” Thus, even if there are cases where it is not possible to generally state the time, place, etc. of a crime due to the nature of the crime, a prosecutor shall specify them as far as possible, and if it does not result in a failure to do so that it substantially impedes the exercise of the defendant’s right to defense, the facts charged cannot

The prosecutor indicted Defendant 1’s hair (the length 3cm or 3.5cm) taken on December 10, 2005 that approximately 70cm was tested pursuant to the Gas Maro-Malithath/Quality Analysis Act, and the result and the result of appraisal by the Supreme Prosecutors’ Office’s Scientific Investigation Division, where the opon ingredient was detected, and that the opon ingredient grow in one month to 0.9cm or 1.2cm, based on the fact that the opon ingredient was detected, Defendant 1’s copon from the date and time from August 10, 2005 to November 20, 2005, the date and time of the crime stated in the above facts charged cannot be said to hinder Defendant 1’s exercise of right to defense, and it cannot be said that Defendant 1’s copon’s quantity and method of administration cannot be said to have been stated in the previous facts charged or the previous method of administration based on the fact that the opon was administered.

Therefore, the judgment of the court below that dismissed the prosecution against the above charged facts under Article 327 subparagraph 2 of the Criminal Procedure Act is just because this part of the prosecution procedure is invalid in violation of the provisions of the law, and the prosecutor's assertion is without merit.

(2) The part of the charge of selling 14:00 Handphones on September 2005 to the Defendants

(A) Summary of the facts charged and the judgment of the court below

The summary of this part of the facts charged is as follows: at around 14:00 on September 200, Defendant 1 purchased KRW 2,000,000 from the square in front of the luminous high-speed railroad station located in luminous, with the purchase price of KRW 2,00,00,000 from Defendant 2; Defendant 2 purchased approximately 10,000,000,000,000 from Defendant 1 and sold 10,000,000,000,000,000.

The court below found Defendant 1 not guilty of the above part of the charges on the ground that the protocol of interrogation of the prosecutor's suspect against Defendant 1 is not admissible as it is not recognized as the authenticity of the protocol, there is no credibility of the protocol of interrogation of the prosecutor's suspect against Defendant 2, and

(B) Judgment of the court below

On the other hand, each protocol of interrogation of the suspect against the Defendants prepared by the prosecutor as evidence of the above facts charged is written.

However, each protocol of examination of Defendant 1 as to the public prosecutor's protocol is acknowledged as the formal authenticity of each protocol in the trial and the court below, but the substantial authenticity is denied to the effect that Defendant 1 does not have any memory that was investigated by the public prosecutor by making the head at the time of arrest. Meanwhile, Defendant 2 does not agree to the admissibility of each protocol as evidence.

In addition, according to the suspect examination protocol as to Defendant 2 prepared by the public prosecutor, and the defendant 2 and the defendant 1 consistently set up in the court below and the court below, they denied the above crimes (the defendant 2 led to the confession by the court below. However, on December 10, 2005, the prosecution investigator made intimidation that the act of selling 15gs to Defendant 1 constitutes the crime of attempted murder. On the other hand, if the confession of the above facts charged was made, the defendant 2 made a false confession as if the crime of attempted murder was not punished, it is argued that the defendant 2 was not punished as the crime of attempted murder). The telephone details bound in the trial record (Article 250 pages), inquiry reply (Article 71, 101 pages) and the telephone contents bound in the investigation record (Article 95 pages) and the fact that the defendants did not know of the above facts charged by the defendant 2 at the time of the crime on December 10, 2005.

Therefore, the judgment of the court below which acquitted the above facts charged is just, and the prosecutor's appeal is without merit.

(2) The portion not guilty as to Defendant 1’s delivery of 0.53g Handphones at around 21:00 on October 2005 to Defendant 1

(A) Summary of the facts charged and the judgment of the court below

The summary of this part of the facts charged is that at around 21:00 on October 2005, Defendant 1 issued the Nonindicted Party 0.53 g of philopon to the Nonindicted Party in the parking lot front of the Masan High-Speed Track-si located in the Masan High-Speed Hack-si, Asan-si, with the vehicle of the Nonindicted Party.

The court below found Defendant 1 not guilty on the ground that there is no evidence to acknowledge the above facts charged, since the protocol of interrogation of Defendant 1 by the public prosecutor is not admissible as it is not admitted to the authenticity, the testimony of the non-indicted 1 in the court below and the investigation agency is not able to do so.

(B) Judgment of the court below

On the other hand, as evidence of the above facts charged, the statement of the witness in the court of the court below by the non-indicted witness and each protocol of interrogation of the non-indicted witness as to the defendant 1 and the non-indicted witness are written.

However, each protocol of examination of Defendant 1 prepared by the public prosecutor is inadmissible for the reasons as seen earlier.

From September 2005 to October 10, the Nonindicted Party lent KRW 1 million to Defendant 1 at the prosecutor’s office and the lower court. around October of the same year, the Defendant 1 contacted with Defendant 1, and parked a car at the temporary parking lot in the Yanananasan High Speed, located in the city of ASEAN, around that time. Defendant 1 told Defendant 1, who first received 0.53 g of philopon from Defendant 1 in the parking lot by putting a phone on a handphone with Defendant 1, at the first time at the parking lot. However, even according to the statement of each monetary specifications bound in the trial record, it was revealed that Defendant 1 did not contact with Defendant 1 in the Yanansan High Speed, Pacific High Speed, and it was reversed at the time of the crime by Defendant 1.

Even if the Nonindicted Party 1 had no reason to make a false statement at the risk of punishment for Nonindicted Party 1 to 5,000, it is difficult for the Nonindicted Party 2 to conclude that the Nonindicted Party 1 had a false statement from Defendant 1 to 305,000, and according to each of the above monetary statements, it can be recognized that Defendant 1 and the Nonindicted Party sent a phone on several occasions only after September 2005. However, there is no room to see that they continued to have a telephone call as above in connection with the transaction of 10,000, it is difficult to conclude that the Nonindicted Party 2 had a false statement from 0,000,000,000, which is the place where the crime was committed, and that the Nonindicted Party 1 had a false statement from 0,000,000,000,0000,000,0000,000,000,000,000,00,000,00.

Therefore, the judgment of the court below which acquitted the above facts charged is just, and the prosecutor's appeal is without merit.

B. Determination of the Defendants’ assertion

(1) First, according to each evidence of the judgment below as to Defendant 2’s assertion of mistake of facts, Defendant 2 is sufficiently recognized as having smoked from December 1, 2005 to December 10, 2005 as stated in the facts charged. Thus, the above assertion by Defendant 2 is without merit.

(2) Next, as to the Defendants’ assertion of unfair sentencing, Defendant 1 and Defendant 2 were sentenced to punishment on two occasions due to the crimes like this case, and Defendant 1 and Defendant 2 were sentenced to punishment on two occasions. However, the guilty part of the facts charged in this case is deemed to have purchased it from Defendant 2 by recognizing Defendant 1 as a penphone 15g, and Defendant 2 acquired 270,000 won from Defendant 1 as its price, by taking into account the fact that Defendant 2 smoked marijuana on one occasion, and all other factors of sentencing indicated in this case including the Defendants’ age, character, and environment, the sentence imposed by the court below is too unreasonable, and the Defendants’ above assertion pointing this out is with merit.

3. Conclusion

Therefore, since the prosecutor's appeal is without merit, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act, and the defendants' appeal is with merit, it is reversed in the judgment of the court below pursuant to Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

Criminal facts and summary of evidence

The summary of the facts constituting the crime and the evidence recognized by this court is the same as the corresponding column of the judgment of the court below. Thus, it is cited in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

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

A. Defendant 1: Article 9(2) of the Act on Special Cases concerning the Prevention of Illegal Trading in Narcotics; Imprisonment selection;

B. Defendant 2: Article 347(1) of the Criminal Act; Article 61(1)8 of the Act on the Control of Narcotics, Etc.; Article 3 subparag. 11 of the Act on the Control of Narcotics (the point of smoking marijuana); Selection of imprisonment, respectively.

1. Aggravation for repeated crimes;

Article 35 of the Criminal Code

1. Aggravation for concurrent crimes;

Defendant 2: the former part of Article 37, Article 38(1)2, Article 50, and the proviso of Article 42 of the Criminal Act

1. Inclusion of days of detention in detention;

Article 57 of the Criminal Code

1. Confiscation;

Defendant 1: Article 48(1)1 of the Criminal Act

1. Additional collection:

Defendant 2: Article 67 of the Narcotics Control Act

Judges Heung-han (Presiding Judge)

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