Defendant

Prosecutor

Seoul Central District Court Order 2018Hu2328 dated October 25, 2018

The appeal of this case is dismissed.

1. Original decision

① The lower court rejected the prosecutor’s claim for the preservation of the collection for the 4 million won portion which the Defendant sold marijuana, and ② dismissed the prosecutor’s claim for the preservation for the collection for the collection for the 4 million won portion which the Defendant received or stored, on the ground that it is difficult to view that the amount equivalent to the unclaimed part among marijuana that the Defendant received or stored, is the amount equivalent to the amount corresponding to the illegal profits under Articles 16, 13(1)1, and 2 of the Act on Special Cases Concerning the Prevention of Illegal Trafficking in Narcotics, Etc. (hereinafter “Act on the Prevention of Narcotics, etc.”) identified by the ground provisions, or the amount corresponding to the illegal profits under Article 52 of the same Act.

2. Whether the original judgment is lawful

Article 52(1) of the Narcotics Transaction Prevention Act provides for an order of preservation for the execution of a judgment of collection in accordance with Article 16, and Article 16(1) provides that where a property to be confiscated pursuant to Article 13(1) cannot be confiscated or is not confiscated pursuant to Article 13(2), an amount equivalent to the value thereof shall be additionally collected. Article 13 provides for a property subject to confiscation as “illegal profits” under Article 13(1)1 and “property derived from illegal profits” under Article 13(2)2.

However, Article 2(3) of the Narcotics Transaction Prevention Act provides that "property acquired from a criminal act in narcotics, etc., property acquired as a result of the criminal act, or funds related to the crime under Article 60(1)1 or 61(1)1 (including criminal attempts) of the Narcotics Control Act" and Article 2(4) of the same Act provides that "property derived from illegal profits means property acquired as a result of illegal profits, property acquired as a result of illegal profits, property acquired as a result of illegal profits, property acquired as a result of such property, and other property acquired as a result of the possession or disposal of illegal profits."

In comparison with the above provisions of Article 67 of the Narcotics Control Act and Article 48 of the Criminal Act, it is reasonable to view the hemp itself that the defendant received and possessed the above provisions as illegal profits or property derived from illegal profits under the Narcotics Transaction Prevention Act, and there is no other evidence to deem that the defendant has the property subject to confiscation under Article 13 of the Narcotics Transaction Prevention Act.

As such, unless marijuana, which the defendant received and possessed, cannot be subject to the confiscation stipulated in the Narcotics Transaction Prevention Act, a request for the preservation of collection of the value can not be made.

The order of the court below is justified.

3. Conclusion

Since the appeal of this case is groundless, it is dismissed in accordance with Article 414(1) of the Criminal Procedure Act.

Judges Next-ho (Presiding Judge)

Note 1) The “46,592,858 won” of 3 pages 1 written order of the court below is deemed to be a clerical error of “42,592,858 won”.

Note 2) On October 26, 2018, the prosecutor stated “the proposed submission of a written reason for appeal after prosecution” in the instant complaint, but did not submit a written reason for appeal by this decision.