2011No1639 Violation of the Act on the Control of Narcotics, etc. ( natives)

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Defendant

Madern

Law Firm (Limited) The fixed rate

Attorney Kim Jin-tae

Incheon District Court Decision 2011Gohap253 Decided June 9, 2011

September 1, 2011

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than three years and six months.

12,077,762 won shall be additionally collected from the defendant.

1. Ex officio determination

A. In addition to collection under the proviso of Article 67 of the Act on the Control of Narcotics, Etc., it is sufficient to order the full collection of drug value within the scope dealt with by the defendant on the basis of the defendant, and a series of actions by the defendant who handled the same drug constitutes separate crimes, and thus, it does not require a separate collection for each act (see Supreme Court Decision 96Do3397, Mar. 14, 1997, etc.).

The lower court ordered the Defendant to additionally collect an amount equivalent to the value of approximately 0.1g of the penphone volume administered by the Defendant in connection with the crime of medication of the Mestopphone (hereinafter referred to as the “Mestopphone”) listed in Article 3-B of the facts constituting the crime in its holding.

However, according to the evidence duly adopted and examined by the court below, the defendant purchased approximately 100 g of philophones from around December 17, 2010, as stated in paragraph (2) of the crime in the judgment below, and in order to verify the quality thereof, it is recognized that he administered approximately 0.1g of 100 g of the above philophones, as described in paragraph 3-B of the crime in the judgment below.

According to the above facts, in the case of the defendant's violation of the Act on the Control of Narcotics, etc. through the Handphone medication on December 17, 2010, the defendant constitutes separate crimes from the violation of the Act on the Control of Narcotics, etc. by the purchase of Handphones on the same day. However, since the defendant's series of acts handling the same drug constitutes separate crimes, it constitutes a separate crime, it should be ordered to additionally collect only the amount equivalent to the value of Handphones purchased by the defendant, and it should not be ordered to separately collect the amount equivalent to the value of Handphones administered by the defendant.

B. Furthermore, we examine whether it is reasonable for the court below to calculate the value of philophones subject to forfeiture by the entry of the investigation report (302 pages of evidence records) submitted by the prosecutor.

The lower court, based on the above investigation report, deemed that the value of penphones handled by the Defendant, 180,000 won per g in the case of 10g, and gg in the case of lg, and that 29,090,000 won per g in the case of lg. The lower court ordered the Defendant to additionally collect 29,09,00 won ( = 160.5g of live phone volume x 180,000 x 180,000 of live phone volume x 0.2g of live phone volume x 1,00,000 of live phone volume x 1,000 won (in the case of collection due to the crime of live phone medication on December 17, 2010, it cannot be maintained even for the same reasons as the above paragraph).

The recognition of collection does not require strict certification (see Supreme Court Decision 91Do3346 delivered on June 22, 1993, etc.) and it cannot be denied that there is an objective difficulty in calculating the value in the case of narcotics, etc. whose market price cannot be formed due to normal supply and demand due to the prohibition of transactions in a public market, such as phiphones.

However, since the recognition of the amount of collection is subject to free evaluation, it is not possible to allow evidence preparation or fact-finding contrary to logical and empirical rules because it is contrary to objectivity and rationality, a fact-finding court should recognize the amount of collection based on objective and reasonable evidence among the evidence submitted. In particular, considering that the collection prescribed in the Narcotics Control Act is a disposition with punitive nature, if there is conflicting evidence as to the value of the penphone handled by the defendant, but it cannot be readily concluded that the probative value of the penphone is higher than that of the evidence favorable to the defendant, the value of the penphone should be calculated based on evidence favorable to the defendant.

However, in the case of the above investigation report that the court below acknowledged probative value, if the narcotic investigation report confirmed the market price of phiphones through the sale of phiphones and the statement of the administered parties, it is reasonable to view that the above investigation report failed to have sufficient probative value in calculating the market price according to the quality of phiphones for collection, considering the following: (a) the specific method of investigation is not known; (b) considering the fact that the quantity of phiphones is more than 100g and the market price per gg is at least five times, even if the quantity of phiphones is at least five times, there is no reasonable ground for it; and (c) considering the fact that the same quantity of phiphones can have a substantial difference in the market price according to their quality, the above investigation report did not have sufficient probative value in calculating the value of phiphones for collection.

Rather, according to the evidence duly adopted and examined by the court below, the defendant purchased approximately 100 g of philopon on December 17, 2010, as stated in paragraph (2) of the criminal facts in the judgment below, around 45,00 in China, and then imported two times as described in paragraphs 1-b and 1-c of the criminal facts in the judgment below. The above 45,00 ghopon should be objectively reflected at least 100 g of philopon purchased or imported by the defendant at least, as stated in paragraph (1) of the criminal facts in the judgment of the court below, and the market price of 0 goponon, as stated in paragraph (2) of the judgment of the court below or 3-A of the court below, as stated in paragraph (1) of the former 1 of the criminal facts in the judgment below, is also 0.1g of philopon on the basis of the market price of 10 gopon on the market price as stated in the judgment below.

C. Ultimately, the amount to be collected from the Defendant is KRW 12,07,762 [ = 12,070,242 ( = 160.5g in the volume of scopon sealedly imported = 75,204 won x 75,204 won ( = 45,000 on August 31, 201: 167: 10g in the exchange rate as of August 31, 201: 10: 10g in the volume of scopon administered on December 13, 201] + 7,520 won ( = 0.1g in the volume of scopon administered on December 13, 201 x 75,204, and less than 290,000 won)]; and the lower court erred by misapprehending the legal doctrine on the result of the additional collection or ordering the additional collection.

2. Conclusion

The judgment of the court below is reversed without examining the defendant's assertion of unfair sentencing, and the judgment below is reversed, and it is again decided as follows through pleading.

Criminal facts and summary of evidence

The summary of the facts constituting an offense and its evidence recognized by this Court is as stated in the column of "a summary of the evidence" of the judgment of the court below (No. 18 No. 5 of the evidence list) in the column of "a summary of the evidence."

Application of Statutes

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

Articles 58(1)6, 4(1), and 2 subparag. 4(b) of the Act on the Control of Narcotics, Etc., and Article 30 of the Criminal Act (Article 1-2(1)3 of the Act on the Control of Narcotics, Etc., and Article 58(1)6, Article 4(1), and Article 2 subparag. 4(b) of the Act on the Control of Narcotics, Etc., and Article 30 of the Criminal Act (Article 58(1)3 of the

15. The term "15 years as prescribed by the main sentence of Article 42 of the Act on the Control of Narcotics, etc.", "Article 60 (1) 3, Article 4 (1), and Article 2 subparagraph 4 (b) of the Act on the Control of Narcotics, etc., and Article 30 of the Criminal Act (the point of purchasing scopphones, the point of administering scopphones, the point of administering scopphones, and the choice

1. Aggravation for concurrent crimes;

Article 37 (Aggravation of Concurrent Crimes for Punishment as provided for in the former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act. Article 50 (Aggravated Punishment No. 1-b)

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (see, e.g., Articles 55(1)3 of the Criminal Act)

1. Additional collection:

The reason for sentencing under the proviso of Article 67 of the Act on the Control of Narcotics, Etc. is that the defendant's act of committing the crime of this case is highly harmful to society, and that the defendant's passive participation in the crime of this case is not deemed to have been committed, considering the following: the defendant's act of this case is highly harmful to society, and the defendant's act of this case is not considered to have been actively involved in the crime of this case.

However, it is against the defendant's depth of his criminal act and cooperate in the investigation, the criminal records of the defendant are many, but there is no same criminal records, and the two parts of the defendant were born through the test procedure on January 6, 201, and the defendant is the most responsible for returning to society.

The fact that family members such as the defendant's wife, etc. are trying to prevent recidivism, etc. should be taken into account as factors for sentencing favorable to the defendant.

In addition, all the sentencing factors shown in the arguments of this case, such as the defendant's age, occupation, career, character and conduct, shall be determined as ordered.

Judge Maximum Hong-man

Judges Nown Korea

Judges Dok-woo