(영문) 서울중앙지방법원 2017.11.30. 선고 2017고합1013 판결

Defendant A shall be punished by imprisonment with prison labor for three years and six months, by imprisonment for two years, and by imprisonment for one year and six months, respectively.

However, with respect to Defendant C, the execution of the above sentence shall be suspended for three years from the date this judgment becomes final and conclusive.

To order Defendant C to be put on probation, to provide community service for 200 hours and to take lectures for pharmacologic treatment for 80 hours.

Seized evidence Nos. 2 through 7, 35, 36 from Defendant A, and 10 through 26 from Defendants shall be confiscated.

6,410,00 won jointly from the Defendants, 5,810,000 won jointly from the Defendants, and 120,000 won jointly from the Defendants, and 114,575,618 won from the Defendant A, and 120,000 won from the Defendant C shall be additionally collected.

The amount equivalent to the above additional collection charge shall be ordered to each of the defendants.

Reasons

Criminal facts

1. Defendant A

Since November 2014, Defendant A was supplied with marijuana and sheeting (a place where marijuana was concentrated) from the narcotics supply volume, and sold marijuana and sheeting by using I’s “J” 'JK’ from the notice of sale to the buyer’s management, bitco fund management, and delivery.

(a) Purchasing marijuana or sheeting;

On May 3, 2016, the Defendant transferred the amount equivalent to KRW 360,000,000 to the name-free winners ("IDL") known through the "J" website, and then purchased 3g of marijuana from the NP toilets near the entrance and exit located in Gangnam-gu Seoul Metropolitan Government M at around 22:00, May 3, 2016.

From that time to August 2017, the Defendant purchased 411g1 of marijuana and 920g of 11,2980,000 won, from that time, nine times in total, as shown in Appendix 1.

(b) Sale of marijuana or sheeting;

On early 2015, at around 21:00, the Defendant met Q in the smoking area near the Gangnam-gu Seoul P Station or sold 220,000 won in cash for marijuana 2g.

From September 14, 2017, the Defendant sold approximately 50g of marijuana, approximately 124g of 2,1140,00 won from that time to September 14, 2017, as shown in Appendix 2.

At around 01:00 on September 15, 2017, the Defendant smoked by mixing approximately 0.2g of the Defendant’s residence benda, 103 dong 401, with tobacco powder, by mixing it with 0.2g of the Defendant’s residence, in a manner of inhaleing the smoke by putting it into a rosher.

(d) the custody of marijuana and sheeting;

1) On September 15, 2017, around 17:50, the Defendant possessed approximately 4.04 g of the winding in Songpa-gu Seoul S and 101.

2) At around 17:50 on September 15, 2017, the Defendant kept approximately 0.47g of marijuana in the Defendant’s residence indicated in the foregoing paragraph (c).

2. Joint criminal conduct by Defendant A and B;

Defendant A, as described in paragraph (1), sold marijuana and sheeting from November 2014, to sell marijuana and sheeting, with Defendant A, who, alone, was to manage the entire area of Seoul, from February 2017 to February 2017, to sell marijuana and sheeting with Defendant B.

The Defendants conspired to sell marijuana and sheeting in a way that Defendant A is in charge of the management of the “J” site, the management of bitco funds, and the delivery of the Seoul Gangnam-gu Seoul. Defendant B was in charge of the storage, subdivision, Seoul Southern-do delivery, the buyer management through T, and the remittance of the sale amount to Defendant A) of marijuana and sheeting in the manner that Defendant A was in charge of the storage, subdivision, and distribution of marijuana and sheeting from Defendant A.

According to such public offering, Defendant A decided to sell 3.5g of marijuana to U through the “J” on March 2017, 2017, and then transferred 400,000 won to the Republic of Korea from U.S., Defendant B concealed approximately 3.5g of marijuana in front of the building in the French-dong, Gangnam-gu, Seoul, and notified U through Defendant A of the information about the relevant place by printing it to U through Defendant A.

Accordingly, the Defendants conspired from that time to August 20, 2017, sold approximately 12gs of hemp and approximately 34.5g of 14 times in total, as shown in the annexed Table 3, from that time, to that time, approximately 5.10,00 won in total.

3. Defendants’ co-principal conduct

A. On May 2017, Defendant A and Defendant B, who jointly sold marijuana and sheeting, as set forth in paragraph (2), returned to the Republic of Korea by Defendant C around May 2017, and lived together with Defendant B, Defendant C introduced marijuana and sheeting buyers, and subsequently, Defendant C conspired to introduce marijuana and sheeting to the Republic of Korea, along with Defendant B.

According to such a public offering, Defendant C introduced to Defendant B the name-free purchaser using TID 'V', and Defendant B concealed approximately 5g of marijuana received from Defendant A in front of the X store located in Songpa-gu Seoul Metropolitan Government on June 8, 2017, and notified the above name-free purchaser of the relevant information.

Accordingly, the Defendants conspired to sell marijuana, from that time until September 14, 2017, sold approximately 13gs of marijuana and approximately 42.5gs of 42.5gs of 13 times in total, as shown in [Attachment Table 4], from that time to September 14, 2017.

(b) Sheshing.

According to the above public offering, Defendant B and Defendant C sent a breaker to Defendant B and Defendant C. On September 15, 2017, Defendant B and Defendant C included a breaker about 53.4gg in glass bottles at the inside of the joint residence of Defendant B and Defendant C on September 15, 2017.

Accordingly, the Defendants conspired to keep marijuana.

4. Joint criminal conduct by Defendant B and Defendant C

A. From July 2015 to August 2015, the Defendants 20:00, around 20: (a) around 20:0, the studio Defendant C in the studio of the building in Seodaemun-gu Seoul, Seomun-gu, Seoul, put about approximately 0.1g of marijuana into the cans; and (b) dyp the smoke discharged with fire.

B. On December 6, 2016, the Defendants, along with Z on December 23:0, 2016, have diceed approximately 1g of marijuana to the pipe in Seoul Special Metropolitan City, AA and 801, and have dynafed to the smoke discharged with the dyer’s fire.

C. At around 17:00 on September 14, 2017, the Defendants, at the residence of the Defendants listed in paragraph 3(b) of Article 3, have 0.1g of a carpetas crypted softened on the mouth of a carpetas, sticking the cry as soon as possible on the following part, dyping a smoke by attaching a fire on the shsh, and dyping it.

Accordingly, the Defendants jointly smoked marijuana three times.

5. Defendant C

(a) Sale of marijuana;

around 23:00 on January 13, 2017, the Defendant received 120,000 won in cash from the Gwanak-gu Seoul Special Metropolitan City AA and 801 and sold approximately 1g of marijuana to 2.

(b) Smoking marijuana;

On January 13, 2017, at around 23:30, the Defendant, along with Z, smoked marijuana in collaboration with Z and Z, by drilling the hole into the pest and laying about 0.1g of marijuana on the part of the site described in the above paragraph (a).

Summary of Evidence

1. Defendants’ respective legal statements

1. Each police suspect interrogation protocol of AB, AC, AD, AE, U, AF, AG, Q, and AH (Duplicates);

1. Each seizure record of the police;

1. Each person conducting the inspection of the ACCUSGN and each confirmation letter, each narcotics appraisal report, each narcotics appraisal report, and each narcotics appraisal report with respect to the Defendants;

1. On-going report, internal investigation report, investigation report ("K"), investigation report, investigation report ("J" analysis of sales structure and settlement method of narcotics, criminal facts related thereto), investigation report (non-coin tracking that has been deposited into the AI account of B), investigation report (suspect B specific), investigation report (investigation report on the facts of sales of narcotics continuously A), investigation report (investigation report on the facts of sales of narcotics continuously A), investigation report (Analysis of transactions of non-coin, etc. of AH and A and B), investigation report (Analysis of money flow transferred by B, etc.), investigation report (the amount of money flow transferred by the suspect A, etc.), investigation report (the market price report and the amount collected);

1. AB AJ remittance details, non-coin entry and withdrawal details, won currency entry details, purchase and sale details, AI access details, bank under A, national bank transaction details, each account transaction details, each non-cocoin transaction details, each of the transaction details, each of the transaction details on the electronic tcoin, C mobile phone hosting photographs, B mobile phone hosting photographs, and A mobile phone photo;

1. Seoul Central District Court Decision 2014 High Court Decision 826

Application of Statutes

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

A. Defendant A: Article 1 subparag. 1 of the Addenda of the Narcotics Control Act (amended by Act No. 14019, Feb. 3, 2016); Article 59(1)7 and Article 3 subparag. 9 of the former Act on the Control of Narcotics (amended by Act No. 14019, Feb. 3, 2016); Article 1 subparag. 3 of the Act on the Control of Narcotics, Etc.; Article 6 subparag. 1 of the Act on the Control of Narcotics, Etc. (amended by Act No. 14019); Article 59(1)7 and Article 3 subparag. 7 of the Act on the Control of Narcotics, Etc. (Article 1 of the Act on the Control of Narcotics, etc.); Article 6 subparag. 1 of the former Act on the Control of Narcotics, etc. (Article 1 of the Act on the Control of Narcotics, etc.); Article 59(1)7 and Article 3 subparag. 9 of the Act on the Control of Narcotics, etc. (Article 2 of the Act No. 7 subparag.)

(b) Defendant B: Articles 59(1)7 and 3 subparag. 7 of the Narcotics Control Act, Article 30 of the Criminal Act (the point of sale by marijuana and sheeting), Article 61(1)6 and Article 4(1)2 of the Narcotics Control Act, Article 30 of the Criminal Act (the point of keeping it out, choice of imprisonment), Article 61(1)4(a) and Article 3 subparag. 10(a) of the Act on the Control of Narcotics, Etc., Article 30 of the Criminal Act (the point of sale by marijuana and sheeting, the choice of imprisonment); Article 61(1)4(a) and Article 3 subparag. 10(a) of the same Act

(c) Defendant C: Articles 59(1)7 and 3 subparag. 7 of the Narcotics Control Act, Article 30 of the Criminal Act (the point of sale of marijuana and sheeting at the time of marketing), Articles 59(1)7 and 3 subparag. 7 of the Narcotics Control Act (the point of sale of marijuana at the time of marketing at the time of marketing), Articles 61(1)6 and 4(1)2 of the Narcotics Control Act, Article 30 of the Criminal Act, Articles 61(1)4(a) and 3 subparag. 10(a) of the Narcotics Control Act, Article 30 of the Criminal Act, Article 61(1)4(a) and 30(a) of the Criminal Act, Article 30 of the Criminal Act

1. Aggravation for concurrent crimes;

(a) Defendant A: The penalty provided for in the former part of Article 37, Article 38(1)2, Article 50, and Article 1(1)5 of the Criminal Act, as a result of the purchase of marijuana listed in the attached Table 5 No. 1, among the provisions of paragraph (1) of Article 1 of the same Act, which is the largest sentence;

(b) Defendant B: The penalty provided for in the former part of Article 37, Article 38(1)2, Article 50 of the Criminal Act, and Article 3(1)3(a) of the same Act, among the types of concurrent crimes with the punishment provided for in the former part of Article 37 of the same Act, Article 38(1)2, Article 50 of the same Act, as well as concurrent crimes with the punishment provided

(c) Defendant C: The head of the headquarters among concurrent crimes resulting from the violation of the Act on the Control of Narcotics, etc. (mariju) by the sale of marijuana as provided in the former part of Article 37, Articles 38(1)2 and 50 of the Criminal Act, and Article 50 of the same Act, whichever is the largest;

1. Suspension of execution;

Defendant C: Article 62(1) of the Criminal Act

1. Probation and order to provide community service or attend lectures;

Defendant C: Article 62-2 of the Criminal Act

1. Confiscation;

Defendants: the main sentence of Article 67 of the Narcotics Control Act

1. Additional collection:

Defendants: The proviso of Article 67 of the Narcotics Control Act

【Reasons for Calculation of Surcharge】

○ Joint collected amount by the Defendants: 6,410,000 won

(1) On the 3rd household sale: 6,410,00 won in total, of the sales amount 13g of marijuana, 42.5g of sheeting 42.5g.

(2) The part of the custody of Paragraph 3(b) of the ruling: Mash 53.4g of Mash, or all of the appraisal shall not be collected separately as it was consumed or confiscated.

○ Defendant A, B’s joint collection amount: 5,810,000 won

(1) In the case of Paragraph (2) of the holding: 5,810,000 won in total, of the sales proceeds of marijuana 12g, sheeting 34.5gs.

○ Joint collected amount by Defendant B and C: 120,000 won

(1) In the case of smoking in marijuana as referred to in paragraph (4) of the judgment: 120,000 won (i.e., the total of 1.2g x marijuana 1g retail price of 1,00,000 won for marijuana which has been smoked three times)

○ Defendant A’s sole additional collection amount: 114,575,618 = (i) + 2)

(1) The part on the purchase of sea-going marijuana and sheeting 1: 93,435,618 won

12,980,00 won (i.e., marijuana 49,380,00 won + 63,600,000 won) in total purchased by the Defendant; (ii) the value of the purchased marijuana and sheet sold; and (iii) the value of the confiscated portion of the purchased marijuana and sheet sold, shall be deducted from the amount of additional collection; (iv) 13.5g of marijuana and sheet sold; (v) 13.5g of seash 201g of the total sum of the remaining crimes in [Attachment 1] 5.5g of the daily crimes in [Attachment 1] and 920g of the sheet in [Attachment 1] and 920g of the sheet in [Attachment 1] and 2.3g of the list in [Attachment 3] and 45g of the Crimes in [Attachment 2] and 5g of the remaining crimes in [Attachment 3.5gs in [Attachment 2].

C. 0.47g of the mash, 57.4g of the mash: the value of 13.97g of the mash, 13.97g of the mash, the sum of the quantities of the Mash, the Mash and the Mash, and the Mash 3.4g of the Mash, the Mash 120,145gs of the Mash 1g of the Mash, the Mash 120,145gs of the Mash 17.4g of the Mash, the Mash 13.97gs of the Mash, the sum of the quantities of the Mash, the Mash and the Mash 258.4gs of the Mash 17,865,957 won of the Mash 17,865gs of the Mash 258.4g.

- 12,980,00 won in total of the purchase amount of paragraph (a) of paragraph (1) of the Decision 1,12,980 - 1,678,425 won in value of marijuana 13.97g - 17,865,957 = 93,435,618 won in value of seash 258.4g

(2) Part 1-b sale in its holding: 50g of marijuana, 124g of sheeting, total of 21,140,000 won

(3) In the case of a Class 1(Da) smoking part: The additional collection shall not be made as it has been performed separately, since it has been purchased in accordance with Paragraph 1(a).

(4) The part in the holding No. 1's L/C: 0.47g of hemp, shing 4.04g of sea, or all of the appraisal are consumed or confiscated, and thus, no additional collection shall be made.

○ The sole amount collected by Defendant C: 120,000 won

(1) On the part of sales in Paragraph (a) of Paragraph (5) of this Article: 120,000 won per 1g of marijuana.

(2) Nab smoking portion of judgment No. 5: It shall not be collected separately, as it jointly smokes marijuana sold as shown in the judgment No. 5(a).

1. Order of provisional payment;

Defendants: Article 334(1) of the Criminal Procedure Act

Reasons for sentencing

1. The scope of punishment by law;

Defendants: 1 year to 45 years of imprisonment

2. Application of the sentencing criteria; and

A. Defendant A

1) Violation of the Act on the Control of Narcotics, etc. (mariju) by the purchase and sale of marijuana and sheeting

[Determination of Types] Trading, good offices, etc.

[Special Aggravationd Persons] Aggravationd: Cooperation in investigation of important factors of criminal records and mitigations;

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

2) Scope of recommending punishment based on the standards for handling multiple crimes: Imprisonment with prison labor for one year to three years and eight months.

B. Defendant B

1) Violation of the Act on the Control of Narcotics, etc. (mariana) by selling marijuana and sheeting

[Determination of Types] Trade good offices, etc.

[Special Sentencing]

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

2) Scope of recommending punishment based on the standards for handling multiple crimes: Imprisonment with prison labor for one year to three years and eight months.

C. Defendant C

1) Violation of the Act on the Control of Narcotics, etc. (mariana) by selling marijuana and sheeting

[Determination of Types] Trade good offices, etc.

[Special Sentencing]

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

2) Scope of recommending punishment based on the standards for handling multiple crimes: Imprisonment with prison labor for one year to three years and eight months.

3. Determination of sentence;

(a) Defendant A: Imprisonment for a period of three years and six months;

【Unfavorable Circumstances】

Crimes related to narcotics are not easy to detect due to their characteristics, and the risk of recidivism is high, as well as negative impacts on the society as a whole on the crime due to decryptability, toxicity, etc. In particular, the crime of selling narcotics is highly likely to cause additional crimes due to the spread of narcotics and the possibility of resulting in additional crimes. The Defendant purchased marijuana and sheeting, recruited a buyer by using the Internet, and repeated the crime of returning it by using the Internet, and took part in the crime of co-defendant Ma, known to Co-defendant 1 who was difficult to take charge of delivery on his own, through the trade of marijuana.

The total volume of marijuana and sheeting purchased by the Defendant exceeds 1 kg, and the purchase price also exceeds 100 million won. Although the Defendant was indicted for only only a part of the purchased marijuana and sheeting, according to the Defendant’s statement, the remaining marijuana and sheeting also appears to have been sold and distributed at the time. The illegal profits acquired by the Defendant are presumed to have been significant in light of the amount of marijuana and sheeting handled and the number of crimes committed, even though the illegal profits acquired by the Defendant were not calculated accurately. Although the Defendant purchased and smoked, the Defendant had the same record of being sentenced to the suspension of the execution of one year imprisonment by this Court on August 27, 2014, the Defendant repeatedly committed a crime of repeatedly selling and selling marijuana and sheeting, which has a bad quality of crime, without being able to do so, and without being able to do so. The Defendant also smoke. In full view of these circumstances, the Defendant’s strict punishment equivalent to the liability of the offense is inevitable.

【Free Circumstances】

However, all of the defendants have recognized their crimes, submission of rebuttals throughout several times, and each of them is divided into a truth-finding. The criminal offenders related to narcotics, such as AK and AL, including AH, who purchased marijuana and sold it to them by actively cooperating with the investigation authorities, were arrested. The defendant's wife is facing childbirth and suffers from severe depression. Family members and branchs of the defendant want to have the defendant's preference, and the social relationship of the defendant is clear.

Considering the above circumstances, the defendant's age, character and conduct, environment, motive, means and consequence of the crime, the circumstances after the crime, and all of the sentencing factors indicated in the arguments and records of this case shall be determined as ordered.

(b) Defendant B: Imprisonment for 2 years;

【Unfavorable Circumstances】

In light of the characteristics of narcotics-related crimes, narcotics-related crimes are not easy to detect and are likely to pose a negative impact on the society as well as on the risk of recidivism. In particular, narcotics-related crimes are highly likely to cause the spread of narcotics and additional crimes resulting therefrom. The Defendant, who is co-defendant A, sold marijuana and sheet to multiple buyers, and thereby, acquired illegal profits. The period during which the Defendant participated in the crime was limited to six months, and the Defendant did not take charge of delivery, but did not take charge of delivery, but did not directly and directly contact with the buyers, so that the trade is sexual intercourse. The total amount of marijuana and sheet sold by the Defendant is not large. In full view of these circumstances, the Defendant smoked marijuana for a long time. Considering these circumstances, it is inevitable to punish the Defendant significantly equivalent to the liability for the crime.

【Free Circumstances】

However, the Defendant acknowledges all of his criminal acts, submission of rebuttals through several times, and repents of his mistake. The Defendant is co-defendant A, and the Defendant mainly took charge of delivery according to A’s instructions, and was engaged in direct trade only in some criminal acts. The Defendant acquired 10,000 won per 1g of marijuana and sheeting, which was transported by the Defendant, as profits, and there is no significant benefit. The Defendant has no history of criminal punishment. The Defendant’s family members wanted to have the Defendant’s preference, and thus, the Defendant’s social relationship is apparent.

【Unfavorable Circumstances】

Crimes related to narcotics, etc. are not easy to detect due to their characteristics, and the risk of recidivism is high, as well as negative impacts on the society as a whole due to their halluity, toxicity, etc. In particular, the crime of selling narcotics, etc. is highly likely to cause additional crimes, and thus, its nature is very bad. The Defendant purchased marijuana from Co-Defendant A and introduced Co-Defendant B to Co-Defendant B while smoking. In order to assist in the sale of marijuana and sheeting, the Defendant participated in the marijuana and sheeting delivery in B. In addition to the participation in the crimes A and B, the Defendant directly sold marijuana owned by the Defendant to the Z. The total amount of marijuana and sheeting sold by the Defendant is not large. The Defendant repeatedly smoked marijuana for a long time.

【Free Circumstances】

However, the Defendant acknowledges all of his/her criminal acts, submission of rebuttals throughout several times, and repents his/her mistake. A is only part of the Defendant’s participation in marijuana and sheeting delivery pursuant to B, and the Defendant did not directly engage in the crime of selling marijuana and sheeting delivery, or did not receive any instruction from A. The Defendant appears to have no economic benefit from the criminal act of selling marijuana and sheeting with A. There is no history of criminal punishment. The Defendant’s family members and his/her neighbors want to have the Defendant’s preference, and thus, the social relationship of the Defendant is apparent.

Judges

The presiding judge; and

Judges in the order of precedence

Judge Kang Dong-hun

Note tin

1) The indictment is written in 408g, but it is 41g in total when the amount of marijuana stated in Schedule 1 of the Attached Crimes is corrected ex officio. The same shall apply hereinafter.

2) The indictment is written in 129 g, but it is 124 g if the sum of the amount of piracy set out in Schedule 2 of the annexed Crime List 2, thereby correcting it ex officio. The same shall apply hereinafter.

3) The indictment is written in KRW 2,1740,00,000, but if the sum of the sale amounts listed in Schedule 2 of the crime committed is 2,1140,000,000, it shall be corrected ex officio. The same applies hereinafter.

4) According to the arguments and records in this case, Defendant B took charge of the buyer management via T and the remittance of the sale amount to Defendant A, only for each of the crimes listed in [Attachment Table 3 14] and Table 4 Nos. 1, 2, 5, and 11 of the List of Offenses.

5) Defendant B’s crime committed by the buyer, which is the largest, is the crime.

6) Defendant C is a criminal act for which the buyer sought, and the criminal fact is the largest.

7) The reason is that the portion sold is due to the separate collection of the selling price plus the proceeds from the purchase price. This is because the seized portion is consumed for appraisal or is wholly confiscated.

8) In light of the timing of sale and the volume of sale, the crime listed in [Attachment 2] Nos. 1 to 11 cannot be deemed to have sold marijuana purchased as stated in [Attachment 1](a).

9) The crimes listed in [Attachment 3] 1 and 2 cannot be deemed to have sold marijuana purchased as stated in [Attachment 1](a) even when they were committed, in light of the time and volume of sale.

10) In light of the period of sale and the volume of sale, and the time of entry of AH ( June 15, 2017), the crime described in [Attachment 4] Nos. 1 and 2 cannot be deemed to have sold marijuana purchased as stated in [Attachment 1].

11) = 49,380,000 = 411g (original hereinafter the same shall apply)

12) = 63,600,000/920g

13) In the case of three or more concurrent crimes, the range of final recommending sentences shall be set on the basis of the recommendations for three crimes with the highest maximum of the sentencing criteria. Therefore, the range of recommending three crimes with the highest maximum of sentencing criteria shall be set on the basis of the recommendations for three crimes.