All appeals by the defendant and the prosecutor are dismissed.

Article 11 of the Act on the Aggravated Punishment, etc. of Specific Crimes (related to the crime of paragraph (2) of the judgment below) provides for aggravated punishment of a narcotic offender, etc., by misunderstanding the facts of the defendant or misunderstanding the legal principles of the grounds for appeal (hereinafter “the Act on the Aggravated Punishment, etc. of Specific Crimes”), Article 11 of the same Act provides that “the crime of sale, purchase, receipt, and provision and provision, and the crime of possession and possession of the purpose of assistance in the sale, purchase, or delivery, shall be excluded” among the crimes related to narcotics and native mental drugs, the crime of “trade” is excluded from the subject of aggravated punishment.

In light of the purport and reason of the amendment of the above provision, even though the provision does not expressly stipulate that "the crime of sale, receipt, and provision and the crime of possession and possession of the trade, the trade purpose, the trade intermediary purpose, or the object of receipt and delivery" shall be excluded from the subject of aggravated punishment."

Therefore, Article 11 (2) 2 of the Act on the Control of Narcotics, Etc., rather than Article 11 (2) 2 of the Act on the Aggravated Punishment of Specific Crimes, should apply to the crime of Article 2 of the judgment of the court below.

Article 11(2)2 of the Specific Crimes Aggravated Punishment Act provides that “If the value of a local mental medicine is not less than five million won but less than 50 million won, the punishment is imposed.” However, there is no prosecutor’s proof as to how the Defendant sold the instant phiphone in any form among “retail”, “Intermediate wholesale”, and “Do wholesale”, the Defendant’s act of selling phiphonephones ought to be determined as “Do wholesale” that is favorable to that amount.

Accordingly, if the value of the penphone is calculated on the basis of the wholesale price (50,000 won per 1g) in Seoul area, it is limited to 3 million won ( =60g x 50,000 won) in the case of the penphone as stated in paragraph (2) of the crime in the judgment below, and in the case of the penphone as described in paragraph (2) of the above paragraph, it is limited to 5 million won ( =100g x 100.