(영문) 서울중앙지방법원 2018.8.30. 선고 2018고합554 판결

A container for the storage of the seized marijuana (No. 2), two gambling tools (No. 3 and 4), one smoking tool (No. 5), two electronic strings (No. 6 and 7) shall be confiscated from the defendant.

71,450 won shall be additionally collected from the defendant.

Reasons

Criminal facts

1. Purchasing marijuana;

On June 2017, the Defendant conspiredd to purchase the marijuana with B, and the Defendant purchased the marijuana in a way that he receives 50 knife 50 knife (in Korean, approximately KRW 62,450) from B from the 'C’ park located in Germany, where the name of the 'C’ park in Germany was unknown, and 5 g of marijuana from B.

Accordingly, the defendant purchased marijuana in collusion with B.

2. Smoking marijuana;

(a) Joint smoking with B;

From June 13, 2017 to July 13, 2017, the Defendant, as indicated in paragraph 1, smoked in a pipe that was made from the D’s house located in Germany, with a pipe that was made from the D’s house located in the gambling site, in a way that it is impossible to identify among the marijuana purchased (ordinary smoking 1 minute 0.3~0.5g), with a fire attached, a smoked with B and a smoked.

Accordingly, the defendant smoked marijuana in common with B.

(b) Single-hand smoking of the defendant;

1) At around 23:00 on May 10, 2018, the Defendant smoked marijuana of 1/3 quantity of 1/3 (one minute) of the kid hand saws in the Defendant’s residence located in Seodaemun-gu Seoul and 2nd floor E and with a fire attached thereto.

2) On May 14, 2018, around 23:00, the Defendant smoked marijuana in the same manner as Paragraph 2-b(1) in the above Defendant’s residence.

3) On May 15, 2018, around 20:00, the Defendant smoked marijuana in the same manner as Paragraph 2-b(1) in the above Defendant’s residence. The summary of the evidence is as follows.

1. Defendant's legal statement;

1. Examination protocol of the accused by prosecution;

1. Each prosecutor's interrogation protocol concerning B;

1. Protocol of seizure (Evidence Nos. 3);

1. Each narcotics appraisal statement (the No. 37,38,39 of the evidence list);

1. Application of Acts and subordinate statutes on monthly trends of narcotics (Evidence Nos. 35);

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

Articles 59(1)7 and 3 subparag. 7 of the Narcotics Control Act, Article 30 of the Criminal Act, Article 61(1)4 (a) and Article 3 subparag. 10 (a) of the Narcotics Control Act (the smoking point of marijuana, and the smoking of marijuana between the police officer on June 13, 2017 and the police officer on July 13, 2017, Article 30 of the Criminal Act is added, and the choice of imprisonment)

1. Aggravation for concurrent crimes;

Article 37 (Aggravation of Concurrent Punishment on Narcotics, etc. (Aggravation of Concurrent Punishment in Crimes of Narcotic Act) due to the purchase of marijuana with the largest penalty provided for in the former part of Article 37, Article 38 (1) 2 and Article 50 of the Criminal Act

1. Confiscation;

The main sentence of Article 67 of the Narcotics Control Act

[A prosecutor is also seeking forfeiture of one cell phone (No. 1), but it is difficult to readily conclude that the above article was provided for the pertinent crime even after examining all the evidence submitted by the prosecutor.]

1. Additional collection:

The proviso to Article 67 of the Narcotics Control Act (based on the calculation of a surcharge) : 62,450 won (=the purchase price for marijuana) criminal facts in Article 2 of the Act on the Control of Narcotics, Etc.: Since it is part of the marijuana purchased under paragraph (1) of the criminal facts, it shall not

Criminal facts No. 2-b: 9,000 won (i.e., price for cancer trade by 3/3 of smoking marijuana)

Reasons for sentencing

1. The scope of punishment by law;

Imprisonment with labor for not less than one year nor more than 45 years;

2. Scope of recommending sentences according to the application of the sentencing criteria;

(a) Crimes of violating the Act on the Control of Narcotics, etc. (Basic Crimes) due to smoking in marijuana;

[Determination of Aggravation] Types 2 (ma), such as medication, simple possession, etc. of narcotics (a special salves), (ad., d., e., e.) (a special salves): A previous conviction of the same kind (not less than a three-year suspended sentence).

[Recommendation and Scope of Recommendation] Aggravation, Imprisonment with labor for not less than 10 months but not more than 2 years

(b) Crimes of violation of the Act on the Control of Narcotics, etc. (Concurrent Crimes) due to the purchase of marijuana;

[Determination of Types] Trade Mediation, etc. for Narcotics: Purchase or receipt for medication, simple possession, etc.

○ Aggravation (person who has committed the same offense): Criminal records of the same kind (not less than three years of suspended sentence).

[Recommendation and Scope of Recommendation] Reduction Area, Reduction range of imprisonment with prison labor for not less than eight months, but not more than one year and six months. The scope of recommendations according to the standards for handling multiple crimes: Imprisonment with prison labor for not less than ten months but not more than two years and not more than nine months (in accordance with the standards for handling multiple crimes, two years of imprisonment with prison labor for a maximum of the scope of punishment for a basic crime according to the standards for handling multiple crimes plus nine months of the upper limit

3. Determination of sentence: One year of imprisonment;

The crimes related to narcotics, etc. have a significant negative impact on society, such as avoiding the body and mind of an individual as well as impairing the public health or inducing other crimes. Therefore, the defendant requires a punishment corresponding to his/her responsibility. In particular, even though the defendant had a history of punishment for the suspension of execution due to the administration of phiphonephones and smoking in marijuana, he/she committed the crime in this case at the same time during the period of the suspension of execution. These circumstances are disadvantageous to the defendant.

The fact that the defendant reflects his criminal act is favorable to the defendant.

Other factors of sentencing, such as the defendant's age, character and conduct, environment, motive, means and result of the crime, and circumstances after the crime, shall be determined as ordered in comprehensive consideration.