Defendant

Defendant

Maximum number of public prosecutions, Yellow number, private prosecutions, and private prosecutions;

Law Firm Songin, Attorney Kim Jong-sung

1. Suwon District Court Decision 2019Da493 decided April 9, 2020, / 2. Suwon District Court Decision 2019Da1594 decided October 2, 2019

The judgment of the court below and the judgment of the court below are all reversed.

The sentence against the accused shall be set forth as four years of imprisonment and a fine of five thousand won.

When the accused does not pay a fine, the accused shall be confined in a workhouse for the period converted by one day.

317,468,700 won shall be additionally collected from the defendant.

The amount equivalent to the above fine and the additional collection charge shall be ordered to be paid provisionally.

1. Summary of grounds for appeal;

The punishment sentenced by the court below (one year of imprisonment and a fine of 5,00,000 won, etc.) is too unreasonable (the defendant asserted that the judgment of the court below was erroneous and misapprehension of the legal principles in the initial appellate brief with respect to the judgment of the court below of second instance, but the defendant only withdraws his claim on the first day after the renewal of the first and second trial proceedings before the renewal of the appellate trial proceedings and the first day after the renewal of the trial proceedings, and he stated to the effect that he would be subject to the judgment of unfair sentencing ex officio with respect to the punishment (one year and

2. Ex officio determination

The first and second judgment against the defendant was pronounced, and the defendant filed an appeal against the first and second judgment. This court decided to hold a joint hearing of the two appeals cases. Each of the offenses against the defendant in the first and second judgment is concurrent crimes under the former part of Article 37 of the Criminal Act and should be sentenced to one sentence pursuant to Article 38(1) of the Criminal Act. As such, the first and second judgment cannot be maintained as it is.

3. Conclusion

Therefore, the court below's judgment of the court below Nos. 1 and 2 is reversed in accordance with Article 364 (2) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing, and it is again decided as follows after hearing.

[Grounds for multi-use Judgment]

Criminal facts and summary of evidence

The summary of facts constituting an offense and evidence recognized by this court is the same as that of each of the judgment below, and thus, they are quoted in accordance with Article 369 of the Criminal Procedure Act (including the list of crimes in the annexed Form 1 of the judgment below).

Application of Statutes

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

Article 6(2) of the Act on Special Cases concerning the Prevention of Illegal Trafficking in Narcotics, Articles 60(1)2, 4(1)1, 2 subparag. 3(b), and 32(1) of the Criminal Act (in general, necessary concurrent imposition of imprisonment and fines), Articles 60(1)2, 4(1)1, and 2 subparag. 3(b) of the Act on the Control of Narcotics, Etc.

1. Aggravation for repeated crimes;

Article 35 (Limits under the proviso of Article 42 of the Criminal Act only to Imprisonment with labor for a violation of the Act on Special Cases concerning the Prevention of Illegal Transactions in Narcotics)

1. Statutory mitigation;

Articles 32(2) and 55(1)3 and 6 of the Criminal Act. Article 32(2) and Article 55(1)6 of the Criminal Act (limited to the crime of aiding and abetting in Violation of the Act on Special Cases Concern

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2 and 3, and Article 50 (Concurrent Punishment)

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

1. Additional collection:

Article 16 (1), Article 13 (1) 1, the proviso of Article 67 of the Act on Special Cases concerning the Prevention of Illegal Trafficking in Narcotics, Etc.

[Grounds for calculation of the amount of additional collection: 315,668,700 won + 1,800,000 won = 317,468,70 won

Part concerning the crime of aiding and abetting the Violation of the Act on Special Cases concerning the Prevention of Illegal Trading of Narcotics

- 315,68,700 won = 327,308,70 won (profit from the sale of philophones) - 11,640,000 won (the amount confiscated from Nonindicted 1 of the principal offender and confiscated)

○ Violation of the Act on the Control of Narcotics, etc. (fence)

- Handphones: 1,800,000

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Reasons for sentencing

1. Scope of applicable sentences under law: Imprisonment for a year and six months from six months to six years, and a fine of 25,000 to fifteen thousand won; and

2. Scope of recommended sentences according to the sentencing criteria;

(a) Class 1 crime (the crime of violating the Act on the Control of Narcotics, etc.) ;

[Determination of Types] Trade, good offices, etc. (Type 2), marijuana, flag (b), item c, item c, etc.)

[Special Aggravationd ] Aggravationd : Same criminal record (not less than a three-year suspended sentence)

[Recommendation and Scope of Recommendation] Aggravation, 1 year and 6 months to 4 years of imprisonment

(b) Second crime (the crime of aiding and abetting the Violation of the Act on Special Cases concerning the Prevention of Illegal Trafficking in Narcotics);

The sentencing criteria are not set.

(c) Scope of recommending punishment based on the standards for handling multiple crimes: Imprisonment with prison labor for at least one year and six months (in the case of concurrent crimes under the former part of Article 37 of the Criminal Act and the former part of Article 37 of the Criminal Act, it shall be based on the lower limit of the standard for sentencing in the case of violation of the Act on the Control of Narcotics, etc.

3. Determination of sentence: Four years of imprisonment; and

In order to protect our society and its members from narcotics crimes that have a significant adverse impact on individuals and society as a whole, rapidly and rapidly, and rapidly globalized, metropolitanized, and organized recently, the crime related to narcotics must be strictly cope with the narcotics crime. The defendant sold 10 g of philopon to Nonindicted 6 around April 2018, and supplied Nonindicted 1, etc. with a large amount of 13 popon over 13 occasions from May 2018 to March 2019, so that the defendant can distribute the philopon to Nonindicted 1, etc. with a large number of 40 g of philopons. In light of the circumstances, contents, results, etc. of each of the crimes in this case, it is not good that the crime was committed in light of the fact that the defendant was punished several times for the same crime (one suspended sentence of imprisonment and three times) and the fact that the defendant was discharged from the prison after being released from the prison, and the fact that the defendant had been discharged from the prison last 16th of May 28, 2016.

On the other hand, the circumstances favorable to the defendant include the fact that the defendant recognized all of the crimes of this case and took an attitude against the mistake, that the defendant cooperates in the investigation, that the defendant has a dependent such as his wife, etc.

The sentence shall be determined as per the Disposition, comprehensively taking into account such circumstances and various sentencing conditions as seen in the instant trial process.

Judges Nohyeong (Presiding Judge)