Defendant

Prosecutor

Freeboard (prosecutions) and Kim Woo (Trial)

Law Firm Dasan, Attorney Kim Tae-young

Seoul Central District Court Decision 2015Gohap282 Decided June 5, 2015

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

The Minister of Food and Drug Safety designated as temporary narcotics under the above item (a) even though it did not meet the requirements of possibility and urgency to the extent equivalent to the substance under subparagraph 3 (a) of Article 2 of the Narcotics Control Act, so it is sufficiently recognized that interesting agents containing ethyl content are in need of regulation as temporary narcotics under the above item (a) after meeting the requirements of possibility and urgency to the degree equivalent to the substance under the above item (a). Therefore, the court of first instance that held that the notice was null and void because it goes beyond the scope delegated by the Act on the Control of Narcotics, etc., which was a mother corporation, by misapprehending the legal principles.

2. Note 1) Judgment

A. Summary of the facts charged

1) Use of dysium containing psychotropic drug ethyl ethyl elements (i.e., a single dysium; hereinafter referred to as “cysium”).

Around 00:30 on February 8, 2015, the Defendant, at the Gangnam-gu Seoul, ○○○○○○○○○○○○○○ hotel 1502, located in Seo-gu, Gangnam-gu, Seoul, opened a lid of the Plaintiff’s disease with the Nonindicted Party and used the steam in a way that inhales the steam in co-ownership.

(ii) Sheet imports;

On March 14, 2015, around 23:05, the Defendant entered the Incheon Central Bureau located in Jung-gu, Incheon, by using an aircraft of galtha CX430, starting from the port of Hong Kong to the port of its offer, concealed two diseases for the Defendant’s travel, and closely imported them by passing through the Incheon International Airport Entry Site Search Team.

B. First Instance Judgment

1) Whether the form of delegation is unconstitutional

(1) The temporary narcotics designation system under Article 5-2 of the Narcotics Control Act (hereinafter referred to as the “Act”) is newly introduced as the Act was amended by Act No. 10786, Jun. 7, 2011 to promptly respond to new hallucinogenic substances that have a serious adverse effect on the national health and health. ② This is an urgent need to prevent the rapid increase of similar narcotics in the process of amending the Enforcement Decree of the Act, which requires considerable time to ensure that it will cause serious harm to the national health and health, and thus, directly delegate to the administrative rules of the Ministry of Food and Drug Safety. ③ Temporary narcotics are not prohibited under the Act, but need to be handled and managed as equivalent to narcotics due to their misuse or abuse, and thus, are not limited to narcotics, psychotropic drugs and marijuana, which are equivalent to those under the Constitution. In full view of the following: (i) the scope of delegation is likely to be restricted to what constitutes a crime with sound common food and ordinary legal appraisal of narcotics, etc.; (ii) the form and effect of temporary narcotics or new drug substances-related substances-related substances-related substances-related substances-related 2.

2) Whether the disclosure of the Ministry of Food and Drug Safety pursuant to Article 5-2 of the Act deviates from the scope of delegation No. 2014-369, Dec. 11, 2014; hereinafter “instant announcement”) No. 56

A) Criteria for determining whether the delegation scope is exceeded

The public notice of this case is designated as temporary narcotics of 86 material, including Alkyl nitrite, which is an issue in this part of the facts charged, and the above 86 material is classified as temporary psychotropic drugs under Article 2 subparag. 3 (a) of the Act.

However, as seen earlier, Article 2 subparag. 3 of the Act classifys psychotropic substances into “the seriousness of misuse or abuse of psychotropic substances, whether they are used for medical treatment, lack of safety, and whether they have physical or mental dependence.” The penal provisions also differentiates the degree of punishment depending on the mode of handling psychotropic substances at each stage under items (a) through (d). Article 5-2(2) of the Act provides that where temporary narcotics are designated as temporary narcotics, the grounds for designation of temporary narcotics, names of temporary narcotics, temporary narcotics, temporary narcotics or temporary marijuana, classification of temporary psychotropic drugs, and designation of temporary narcotics shall be subject to the same punishment as those under Article 2 subparag. 3 (a) through (e) of the Act. Unlike narcotics and marijuana, the Act separates the scope of psychotropic substances from “the psychotropic substances under Article 2 subparag. 3 (a) through (e) of the Act,” so that it may be deemed that the temporary psychotropic substances may be subject to punishment to the same extent as those under Article 5-2 (4) of the Act, which does not apply mutatis mutandis.

B) Whether it corresponds to the psychotropic drugs under subparagraph 3 (a) of Article 2 of the Act

No. 56 of the announcement of this case is divided into temporary psychotropic drugs under Article 2 subparag. 3 (a) of the Act. However, in order to punish Alkyl nitrite equivalent to the psychotropic drugs under Article 2 subparag. 3 (a) of the Act, it is necessary to examine the possibility of misuse or abuse, safety, physical or mental dependence equivalent to the substances under Article 2 subparag. 3 (a) of the Act.

According to the public notice of this case, the pharmacological effect of alkyl nitrite is merely merely a "fluor expansion" and does not state "alkyl nitrite's operation or operation possibility" only for the above 60 substances. The evidence submitted by the public prosecutor alone cannot be readily concluded that alkyl nitrite is not used for medical treatment, nor is there any other evidence to acknowledge that alkyl nitrite is a substance lacking safety. The evidence submitted by the public prosecutor alone cannot be readily concluded that alkyl nitrite is a substance with a high risk of misuse and abuse and severe physical or mental dependence, and there is no other evidence to acknowledge it, it is difficult to view alkyl nitrite as a substance equivalent to psychotropic drugs under Article 2 subparagraph 3 (a) of the Act. Thus, it is difficult to deem that alkyl nitrite's operation or operation possibility. Thus, it does not constitute a temporary delegation of psychotropic drugs under Article 2 subparagraph 3 (a) of the Act.

C. Judgment of the court below

Examining the first instance judgment in comparison with records, the first instance judgment is just and acceptable. Therefore, as pointed out by the prosecutor, the judgment of the first instance is erroneous in the misunderstanding of legal principles as to the judgment of the first instance, which affected the conclusion of the judgment. Therefore, the prosecutor’

3. Conclusion

Therefore, the prosecutor'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.

Judges Kim Sang-ok (Presiding Judge)

1) Of the judgment of the first instance court, the guilty portion, such as the crime of violation of the Act on the Control of Narcotics, etc. (fluence), and the crime of violation of the Act on the Control of Narcotics (narcotics), etc., was judged in the trial together with the acquitted portion. However, among the judgment of the first instance, the guilty portion was not only the defendant did not appeal but also did not appeal against the guilty portion, and the guilty portion is not subject to the examination and judgment of this court by deviating from the object of attack and defense between the parties. Accordingly, the first instance court’s conviction conclusion is followed with respect