(영문) 서울중앙지방법원 2017.6.29. 선고 2017고합288 판결

In Japan, the Defendant ordered narcotics and delivered them to C, and C received and kept narcotics in Korea, while the Defendant posted a letter on the “D of the deep web, which is an Internet site, and informs C of the type, quantity, delivery place, etc. of narcotics to be delivered to C when the order is entered. C had the purchaser receive the narcotics by concealing the narcotics, etc. at the place known to C and allowing C to receive them by the purchaser, and then the Defendant conspired to sell and sell the narcotics, etc. in a manner in which C and C divide the proceeds from the transfer of the proceeds to the bitcoin account under his control by the Defendant and C.

1. Purchasing marijuana and lsD;

A. As above, the Defendant, in collusion with C, remitted money to Bitcoin to Bitcoin on July 2016, and C received KRW 120 g of the hemp that C sent to G through domestic delivery, around 16:30-17:00 on July 15, 2016.

B. As above, the Defendant, in collusion with C on July 2016, sent 300,000 won to the sales volume of ls 15,000,000 won to the sales volume of ls 15,000,000,000,000 won of ls 15,000,000,000,000,000 won of ls 15,000,000,000,000,000,000,000,000,000,000,000,000,000,000 won.

Accordingly, the Defendant, in collusion with C, purchased lsD 15, marijuana 120g.

2. Acceptance of MDMA;

On July 15, 2016, the Defendant, in collusion with C, received MaMA approximately 5g from Kwikset service, who sent 'E' free of charge, as described in Section 1-A(A) of the criminal facts in the judgment of the Defendant, in the front of the Fla in Dongjak-gu Seoul on July 15, 2016.

3. Sale of marijuana;

In collusion with C, the Defendant, on July 24, 2016, sent an advertisement to Ad'J on the website, and decided to sell and sell 1g of marijuana to the name-free buyers using Ad'K, who had contacted with D'D', and received 110,000 won of 110,000 won of bitcos and notified C of the details of the order.

C around July 24, 2016, around 13:34 on July 24, 2016, around 13:34, attached a newspaper to the collection of clothes in front of Yongsan-gu Seoul Metropolitan Government M, so that C may receive it to the purchaser.

As such, the Defendant and C conspired with each other from July 20, 2016 to February 24, 2016, transferred 880,000 won of bitcos over seven occasions, as indicated in the list of offenses, and sold 8g of marijuana.

Summary of Evidence

1. Defendant's legal statement;

1. C’s legal statement;

1. Statement by the prosecution against C;

1. Each protocol of seizure and the list of seizure (including copies thereof);

1. [Duplicated Copy] Investigation Report (Sales Internet site, such as marijuana, established by A), Investigation Report (Investigation of DNA conversations between the suspect C and evidence No. 37)

1. 25 copies of a photographic recording of the Nabsengs, photographs of seized articles, nping photographs, and DNA photographs;

1. [Certified Copies] Narcotics Appraisal Statement (2016-H-1222)

1. Court rulings (Seoul Central District Court 2016Gohap804);

Application of Statutes

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

Article 1 subparag. 1 of the Addenda to the Narcotics Control Act (hereinafter referred to as the "Narcotic Drugs Control Act"), Article 59(1)7, and Article 3 subparag. 9 of the former Narcotics Control Act (Amended by Act No. 14019, Feb. 3, 2016); Article 58(1)3, Article 3 subparag. 5, and Article 2 subparag. 3 (a) (including the purchase and sale of marijuana and the sale of marijuana); Article 58(1)3, Article 3 subparag. 5, Article 2 subparag. 3 (a) of the Narcotics Control Act (including the purchase and sale of marijuana); Article 60(1)2, Article 4(1)1, and Article 2 subparag. 3 (b) of the Narcotics Control Act (excluding the purchase and sale of marijuana); Article 60(1)2, Article 60(1)1, and Article 2 subparag. 3 (b) (Selection of Imprisonment)

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act is the most severe lsD Purchase, and the punishment provided for in the crime of violation of the Narcotics Control Act is the concurrent crimes.

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following consideration for the reasons for sentencing):

1. Additional collection:

The proviso to Article 67 of the Narcotics Control Act

[The basis for the calculation of a surcharge] 1.00 won for the purchase of marijuana as stated in the judgment of 1.00 = 105,000 won = 100,000 won (the retail price per 1g of marijuana as of the monthly trend of narcotics, etc., January 2017) X1.05g (i.e., 110.95g seized 120g of marijuana)

○ Criminal facts No. 1-b. LSD purchase, Paragraph 2 MMA acquisition: All MMAs received from the purchased LSD are confiscated, and thus, it is not collected separately.

○ Criminal facts related to the sale of marijuana No. 3: 880,000 won

Total ○: 985,00 won = 105,000 won + 880,000 won

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

In relation to the facts of the crime in the judgment, the defendant was aware of the fact that the goods not ordered by C were delivered by C and confirmed by E, and then informed C of the fact that the 'E' was sent to C as the service, and there was no other participation in C's MMA acceptance.

2. Determination

In full view of the following circumstances recognized by this court through legitimate adoption and investigation, it is reasonable to view that MMA, which sent 'E' as a service in the course of the purchase of marijuana, was in collusion with the defendant and C, and thus, the above argument is not accepted.

① A person who entered into a sales contract with 'E' is the defendant and C merely takes charge of the receipt of the goods.

② A person who asks 'E' about the reason for delivery of MMA is also the defendant.

③ On the deep web site on December 28, 2015, the Defendant puts comments on the deep web site, and on July 20, 2016, on the block opened by himself/herself, sold MMA respectively, and the Defendant’s dialogue divided into C and B around July 2016, it appears that at the time the Defendant and C had purchased and sold MMA or at least planned to sell MMA.

④ C was kept until the seizure of the above MMA approximately 5g.

Reasons for sentencing

1. The scope of punishment by law: Imprisonment with prison labor for a period of two years and six months to two years and six months;

2. Application of the sentencing criteria;

(a) Basic crime: Violation of the Narcotics Control Act due to the purchase of ls;

[Determination of Types 3] Trading, arranging, etc. for Narcotics (narcotics, Gaol A. Record, etc.)

【Special Convicted Person】

[Scope of Recommendation] Basic Field, 4-7 years of imprisonment

(b) Group 1 and 2 concurrent crimes: Crimes of violating the Narcotics Control Act due to the sale and purchase of marijuana;

[Determination of Types] Type 2, such as assistance in the trade of narcotics (mariju, item (b) and (c), etc.)

【Special Convicted Person】

[Scope of Recommendation] Basic Field, One year to two years of imprisonment

[Determination of Types 3 [Determination of Types ] Simple possession, etc. of Medications for Narcotics (Korean items (b) and (c)]

【Special Convicted Person】

[Scope of Recommendation] Basic Field, 10-2 years of imprisonment

(d) Scope of recommendations based on the standards for handling multiple crimes: Imprisonment with prison labor for not less than four years nor more than eight years to eight months;

3. Determination of sentence: Determination of sentence: Determination of sentence, such as the order, which is somewhat lower than the lower limit of sentencing criteria, by taking into account the following circumstances, including the defendant's age, character and conduct, environment, motive, means and consequence of the crime, and circumstances after the crime, etc.

【Unfavorable Circumstances】

In light of the characteristics of narcotics-related crimes, it is not easy to detect narcotics due to their characteristics, and the risk of recidivism is high, as well as negative impact on the society as a whole due to decliation, toxicity, etc. Nevertheless, the Defendant shared the role with C and purchased narcotics, and distributed them to many people. Furthermore, although the date and time of the crime were not specified, there is a possibility that the Defendant sold more narcotics than the criminal facts charged, according to each of the evidence in the judgment, which is far less likely to have been charged.

【Free Circumstances】

The defendant shows an overall attitude of recognizing and opposing the facts charged.The most severe lsD purchase part was limited to once, and lsD did not distribute them differently from marijuana.

The period, frequency, etc. of the purchase and sale of narcotics, etc. recognized as criminal facts, are not or are not many. The defendant was selected as a national non-Korean student, and is continuing to study in Japanese universities from around 2009.

The defendant is the first offender.

Judges

The presiding judge; and

Judges in the order of precedence

Judge Kang Dong-hun

Note tin

1) C appears to have been sentenced to forfeiture of the entire MMA of the narcotics, etc. described in Paragraph 1 of Article 110.95g, lsd 15g, and lsd 15(2), among the narcotics, etc. described in Paragraph 1 of the same Article (the quantity of the purchased marijuana is somewhat different) in its Seoul Central District Court Decision 2016Ra804 [The Seoul High Court Decision 2017-533].