(영문) 대전지방법원 2015.7.9.선고 2014노2984 판결

For the following reasons, the lower judgment erred by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.

A. Violation of the exclusionary Rule of Illegally Obtained Evidence

Defendant’s wife (hereinafter referred to as “instant video”) who was accused of the fact that Defendant’s wife A, even though it is not a pharmacist, sold 1st of Sino-flusus 1 and 5th of non-chlouseal medicine (hereinafter referred to as “non-chlouseal medicine”), an over-the-counter medicine at a pharmacy (hereinafter referred to as “instant pharmacy”) and submitted the video (hereinafter referred to as “the instant video”) was taken by a general person with no control power, and is illegal evidence collected in violation of the Personal Information Protection Act, and thus, the lower court’s judgment based on such evidence is erroneous.

(b) Ship investigation;

This case is an illegal naval investigation, since a person whose name is unknown gains access to A who had been engaged in the general management work of the pharmacy of this case to help them to commit a part of the defendant.

C. It is reasonable to legally evaluate that an implied, presumed instructionA sold the instant drug under the Defendant’s implied, or presumed instruction, and that it actually sold the instant drug under the Defendant’s implied or presumed instruction.

2. Determination

A. As to the Defendant’s assertion of violation of the rule of exclusion of illegally obtained evidence, the video of this case alleged by the Defendant did not submit it as evidence by the prosecutor, and did not appear as evidence of conviction against the Defendant at the lower court. Therefore, this part of the Defendant’s assertion on the premise that the lower court took the video of this case as evidence of conviction against the Defendant is without merit.

B. As to the assertion that it is an illegal naval investigation, it is unlawful that the investigative agency arrests the person who does not have the original criminal intent by inducing the criminal intent by using deceptive means, schemes, etc. In a specific case, whether it constitutes an illegal naval investigation should be determined by comprehensively taking into account the type and nature of the crime in question, the status and role of the inducer, the background and method of inducing the inducer, the response of the inducer following the inducement, the history of punishment of the inducer, and the illegality of the inducing act itself. An induced directly related to the investigative agency appeals to the dynamic or appraisal of the induced person, using personal friendly relationship with the inducer, or causing financial or psychological pressure or threat, or excessively intervention by providing money to be used for the crime, etc., is not allowed as an illegal investigation. However, even if the inducer did not directly have a relation with the investigative agency, it is not allowed to have caused the induced person to commit the crime by 20 times or 30 times, even if he/she did not have requested the induced person to commit the crime (see the Supreme Court Decision 2070 times.

In light of the above legal principles, considering that the above person's name to purchase the drug of this case from the Defendant's wife appears to have no relation with the investigation agency, and that even if the Defendant's wife made a statement to the effect that the Defendant's wife would request the drug of this case, it is difficult to deem that the above person caused the Defendant or A's criminal intent merely because it is difficult to deem that the above person caused the drug of this case to A, the above person's name to change the drug of this case cannot be deemed to be an illegal naval investigation, and therefore, the Defendant's assertion on this part is without merit. The Defendant's assertion that the Defendant's implied and presumed instruction was issued.

1) At the same time, the Pharmaceutical Affairs Act provides that a person, other than a pharmacist, shall not establish a pharmacy (Article 20(1) of the Pharmaceutical Affairs Act), and as a matter of principle, prohibits the sale of drugs by persons, other than a pharmacy founder or a pharmacist working at the pharmacy (Article 44(1) main text of the Pharmaceutical Affairs Act). The legislative purport of the Pharmaceutical Affairs Act is to ensure that the sale of drugs is likely to affect the national health and thus, it is inappropriate for a pharmacist to leave such sales to the national freedom, and thus, generally prohibits the sale of drugs by releasing general prohibition only for a pharmacist qualified through a certain test (see, e.g., Supreme Court Decision 98Do1967, Oct. 9, 198). In addition, the language and purport of the provision as well as the language and purport of the provision, and to allow a pharmacist to directly engage in the sale of drugs for the proper selection and taking advantage of the name, usage and dosage, efficacy, effect, storage method, side effect, mutual action, etc., of drugs to the extent necessary pharmaceutical guidance necessary for a pharmacist (Article 2).).

2) As to the instant case, the Defendant stated that “A, at the time of investigation, was in the name of the pharmacist, was sold back to him under the direction of the pharmacist,” or that “the Defendant was aware of the fact that he was selling a drug by side (Evidence No. 13, No. 14).” Rather, the Defendant stated that the Defendant would not be memory at all (Evidence No. 31). (2) The Defendant argued that the Defendant sold the instant drug under the Defendant’s implied or presumed instruction that there is a lot of difficulty in believing that he would not have been aware of the fact that the Defendant sold the instant drug to his customer, and that there is no possibility that the Defendant would have sold the instant drug directly or indirectly to the customer, and that there is no possibility that the Defendant would have sold the pharmaceutical drug to the extent that he could not be viewed as having been aware of the fact that the Defendant could not have directly or indirectly involved in the instant drug sales under the direction of the pharmacist at the time of sale of the instant drug.

3. Conclusion

Therefore, the defendant's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.