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(영문) 대법원 2015.11.27 2015도12542
마약류관리에관한법률위반(향정)등
Text

All appeals are dismissed.

Reasons

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the Defendant’s grounds of appeal, the argument that the lower court acknowledged admissibility of each prosecutor’s protocol and written expert evidence against H and J among the grounds of appeal is not a legitimate ground of appeal since the Defendant’s grounds of appeal or the lower court did not consider it as being subject to judgment ex officio.

Dob fact finding, the selection and evaluation of evidence conducted on the premise thereof are within the discretionary power of the fact-finding court unless it exceeds the bounds of the principle of free evaluation of evidence.

Examining the evidence duly adopted and examined by the lower court and the first instance court, it is justifiable to maintain the first instance court that found the Defendant guilty of the facts charged of the instant case (excluding the portion not guilty) on the grounds as stated in its reasoning.

There is no error of exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules or misapprehending the legal principles on the presumption of innocence without exhausting all necessary deliberations.

Article 383 (4) of the Criminal Procedure Act provides that an appeal on the grounds of unfair sentencing shall be permitted only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years is imposed.

In this case where a more minor sentence is imposed against the defendant, the argument that the amount of punishment is unreasonable is not a legitimate ground for appeal.

2. Prosecutor’s ground of appeal on the grounds of appeal is without merit, since the prosecutor’s ground of appeal is purporting to mislead the selection of evidence and fact-finding which belong to the exclusive jurisdiction of the court below

Furthermore, even after examining the record, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

3. Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

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