(영문) 서울중앙지방법원 2018.5.15. 선고 2018고합39 판결

On March 6, 2017, the Defendant entered the Republic of Korea on the same day, following the Defendant’s statement to the effect that “I will hold approximately 36.73 g of Mesofts (hereinafter referred to as “Mesophopon”) who are a native drug at the private house in the Madong City of China,” and that I would hold the Mesophy again, and then enter the Republic of Korea on the same day. Since then, the Defendant contacted E with the above E who was in the Chinese Cheongdo in the same month, I would make 15,000 Mesophalphones (hereinafter referred to as “Mesophopon”), the Defendant agreed to this effect.”

Accordingly, around March 15, 190 of the same year, E packaged approximately 36.73g of the above philophonephones, which were kept by the above defendant at his own residence located in the Cheongdong-gu, Incheon, and concealed them in his own port after packaging them into two vinyls, and at around 10:50 of the same day, he boarded in the Cheongdong-dong, Incheon, Jungdong-gu, Incheon, and entered the Republic of Korea through the Incheon International Airport at around 13:25 of the same day after boarding the Cheongdong-dong, which is located in the Cheongdong-dong, Incheon, China. Accordingly, the defendant imported chiphones in collusion with E.

2. Determination

A. Relevant legal principles

The finding of guilt in a criminal trial ought to be based on evidence with probative value that leads a judge to have a conviction that is sufficient to have a reasonable doubt that the facts charged are true. Thus, in a case where the prosecutor’s conviction is not sufficiently enough to achieve such conviction, the determination ought to be made in the interests of the defendant even if there is suspicion of guilt (see, e.g., Supreme Court Decisions 92Do1405, Sept. 1, 1992; 200Do5395, Feb. 23, 2001; 2016Do21231, Oct. 31, 2017).

B. Determination

1) As evidence consistent with the facts charged in the instant case, E’s statement of witness E, the prosecutor’s office statement of E, one copy of individual immigration status, judgment, ion can response results, etc. According to each of the above evidence: ① the defendant left China on March 4, 2017 and entered Korea on March 6, 2017; ② the defendant was arrested with 36.73g philopon from China on March 15, 2017; ③ the defendant was arrested with 4 years of imprisonment from the first instance court on June 9, 2017 (Seoul Central District Court Decision 2017Ra300), and the defendant was arrested with 3 years and 2 years and 3 years and 2 years and 3 years and 2 years and 3 years and 2 years and 3 years and 3 years and 2 years and 3 years and 2 years and 3 years and 3 years and 27 days and 3 days and 2017 and 3 days and 27 days of the above judgment of the appeal became final.

2) However, in light of the following circumstances acknowledged by the records of this case, it is difficult to view that the E’s statement, the only evidence to prove the Defendant’s recruitment, is sufficiently reliable because it is difficult to avoid doubt as to whether the Defendant’s statement, which is the only evidence to prove the Defendant’s recruitment, is true, and the evidence submitted by the Prosecutor alone, in collusion with E, imported phiphones. It is difficult to view that the fact that the Defendant

A) the response and attitude immediately after the arrest of E

① On March 20, 2017, after being detained, H et al. called “A” and “A” and “B” and the Defendant made a statement to doubt that he reported to the detention center (the fifth page of the record). However, if the Defendant attempted to import E and was exposed to E, the Defendant is a large number of 36.7 grams (the volume of c.e., the c., the c., the c. and the c.r., the c., the 36.7 grams and the c.e., the c., the c., the c.s. 1,000 p.s. and the c., the c.s., the c.s., the c. and the c.s., the c., the c.s., the c. and c., the c., the c.s., the c., the c. of the c. one’s own c.

② On the other hand, E, immediately after being detained, asked the Defendant to report himself/herself. Nevertheless, at the time of the investigation (the first interrogation of the prosecution on March 15, 2017 and the second interrogation of the prosecution on March 24, 2017), he/she did not make a statement that the Defendant requested the import of phiphonephones, and he/she stated the Defendant as an accomplice only after September 12, 2017, which was after the first judgment of the court of first instance was rendered.

B) At the time of the meeting of a detention house, if the Defendant’s statement ① (a) the Defendant sought to import writingphones E, and (b) the Defendant was found to have been subject to active measures, such as visiting the detention house immediately after the detention of E to prevent him from informing him/her of the fact, and gathering E and discussing future measures, the Defendant was detained, and the Defendant first visited E on April 29, 2017. In addition, at the first interview, the Defendant stated “E to have the same personal information remaining, but it is not good.” At the first interview, the Defendant said that “I did not think of his/her interference,” and that “E was fine,” and that “I did not see that the Defendant was fine or fine.” These words, such as these words, were carried out by a person or a person who directed him/her to import the phone, and that the Defendant was a very extraordinary crime.

② On July 1, 2017, in the place where the Defendant was visiting the detention center, “E” means that “A (the Defendant) was cut from one side of the face of the inside and half of the inside and outside of the house.” However, “I do not live for four years,” and the Defendant stated that “I would not die.” If I would have known, I would like to be “I would like to go to go to the outside even if I would go to the outside. I would like to go to go to the outside of the detention center.” After that, on July 8, 2017, I would like to be “I would attempt to go to go to the inside and outside of the detention center, I would like to go to go to do so,” and “I would have to go to go to the outside of the detention center,” and “I would have to go to make a false statement before and after the lapse of two years,” and “I would have to go to go to the outside of the aforementioned report,” and “I would have to go to go to the outside of the meaning that I would have reported the above facts.

③ It was not the Defendant’s family members, including the Defendant, and the branch members did not mean that they asked the Defendant to import phiphonephones at the place of the detention house. Rather, on June 13, 2017, E stated that “I have been cited as “I have been in fluencing losses. I have never cited as the Defendant in the place of the interview.” (the third page of the record), and on June 17, 2017, H expressed that “I will produce many things to the country and have been in the place of the interview.” On the spot, I would like to say that “I would not know how I would have been in the place of the interview. I would like to easily understand the fact that I would like to actively make it difficult for the Defendant’s request to make a false statement in the process of importing phiphones because E was recorded on the face of the detention house (the second page of the record). However, I would not easily oppose the fact that I would not have made a false statement in the process of making a false statement.

C) the circumstances at the time of importation of E’s phiphones

① If the Defendant had imported phiphones, the Defendant maintained close contact with E at the time of March 15, 2017, when he entered the Republic of Korea, and was waiting for the situation of E at the Incheon State supply port, or airport nearby the airport. However, due to the Defendant’s telephone call, the Defendant was in the vicinity of Guro-gu I at March 15, 2017, and was in the vicinity of Seocheon-siJ at around 15:0:00 on March 15, 2017. Moreover, on March 15, 2017, the Defendant called the Defendant before the departure of Korea, but did not receive the phone from the Defendant, and asked the Defendant for the phone call to Korea, and the Defendant was acting in the same way as the Defendant did not appear to be bad, and the Defendant did not appear to have been asked to “the Defendant was able to receive the phone call from the Defendant,” and the Defendant did not appear to have been asked to “the Defendant was able to receive the same time as the Defendant’s customs house.”

E made a statement from March 6, 2017, which the Defendant entered Korea, requested that he enter Korea by telephone, with a philopon. There was no record from March 6, 2017 to March 15, 2017, which was sent overseas from March 6, 2017 to March 6, 2017.

D) The investigation public nature of E

① In order to secure one’s own investigation achievements, E instructed the Defendant and H to arrest the investigation agency by leaving the person “L” into the ship. However, if the Defendant was found to have attempted to import phiphones by making E, E would have sufficiently been informed of the fact that the Defendant requested the import of phiphones rather than seeking to make a separate investigation achievement as seen above, E would have sufficiently known the fact that the Defendant requested the import of phiphones, but did not do so (the storage of public investigation by leaving the person into the ship would have much cost, and the possibility of success would not increase). Such act of E would be difficult to obtain more in light of the fact that the Defendant reported her own immediately after the detention, as seen above.

② E has the mother pay 2 million won for the creation of one’s own investigation achievement. However, if E was intended to import phiphonephones at the Defendant’s request and it was discovered, it is difficult to understand that E had the burden of the cost incurred by the Defendant even if the Defendant was naturally discovered that he had not yet discovered as an accomplice, and that he had the burden of the cost incurred by him due to the Defendant (in addition, E bears the burden of the cost of the flight aircraft cost that he entered Korea with phiphones and enters Korea). E also stated that “When the Defendant requested the receipt of phiphones at the time of his request, he would create and deduction a public figure.” However, it is inconsistent with the aforementioned statement of E that E would not only actively take place on the day of creating a public investigation but also bear the cost.

e) The honorarium E for the importation of philophones is among the defendants in an investigative agency with respect to the honorariums for the importation of philophones.

State money was received 15,000 bills (Evidence No. 9 page) and then during this Court (Evidence No. 9 page)

The statement was reversed to the effect that he received the bill of 10,000 national money, and his father's father and wife was in need of the bill of 10,000 to 15,000 Chinese money, and the defendant did not clearly state the amount of honorariums for the revenue of phiphones by reconcing the statement that he had known of the fact that he had been able to do so.

F) The circumstantialE related to the method of importing philophones stated that the Defendant did not ask why the Defendant sent the philophones on the Gambling toilet on the date of departure into Korea, and that he did not ask for why he did so, and that he did not ask for an open space. On March 14, 2017 to 15, prior to the entry into Korea, the Defendant asked the Defendant whether he would take place at the airport when using the above method. The above E’s statement is hard to believe in light of the following: (a) whether the circumstances leading up to the witness of the flophones themselves, and (b) if he first appeared in the above process; (c) how the specific method was used; and (d) whether the use of such method was not exposed to the investigation agency.

G) On September 12, 2017, after he/she was sentenced to four years of imprisonment in the first instance trial against himself/herself on June 9, 2017, E stated that he/she requested the import of phiphones only in the course of the prosecution investigation on September 12, 2017, which was after he/she was sentenced to four years of imprisonment. Such circumstances were reflected in the sentencing of the appellate trial, and was reduced to three years and six months in the appellate trial. E was tried to secure the public service of investigation into himself/herself through the Defendant and H, but its efforts failed to make efforts, and eventually, it appears that E was made to inform the Defendant of the fact that he/she was sentenced to four years of imprisonment. In light of these circumstances, E, as a sufficient motive for making a false information in order to create favorable circumstances in sentencing.

H) The circumstances pertaining to the Defendant’s narcotics crime

If the defendant had imported 36.73g philophones by E, the defendant had a high probability of having been punished for crimes such as medication, sale, import, etc. of philophones prior to the instant case, but the defendant has no record of being punished for the same crime. In addition, the defendant stated that he entered Korea by inserting philophones in the text of the paragraph on March 6, 2017, and there is no evidence that the defendant was discovered in the customs office or arrested the investigation agency on the same day.

3. Conclusion

Thus, since the facts charged in this case constitute a case where there is no proof of facts constituting a crime, the court rendered a judgment of innocence pursuant to the latter part of Article 325 of the Criminal Procedure Act and publicly announced the summary of the judgment of innocence pursuant to the main sentence of