[1] The meaning of the broad meaning of the ship investigation and the criteria for determining the legitimacy of the investigation

[2] In a case where an investigative agency (public prosecutor) ordered a partner Gap to propose the purchase of phiphones, and arrested Eul and arrested Eul who sought phiphones, and prosecuted the defendant Gap and Eul by receiving and selling phiphones, the case dismissing the prosecution against the defendant Eul who directly sought phiphones on the ground that the defendants Eul who directly sought phiphones on the ground that they were "the so-called "the so-called "the opportunity provided naval investigation by giving opportunities" was found guilty, taking into account the circumstances in which the defendants became the object of the prosecution investigation by the prosecution, the criminal records of the defendants, the criminal records of the defendants, the continuity of the act, and specific roles, etc., and the above cooperation and the extent of arranging the defendant Eul,

[1] The broad meaning of naval investigation is divided into so-called "opportune type" and "type of causing a crime". The former is recognized as simply providing a person having a criminal intent with an opportunity to commit a crime or facilitating a crime, and is lawful by the investigation method. On the other hand, the latter is illegal as violating the legal principles of the integrity and due process of an investigation required by the State. The distinction between the above two naval investigations depends on whether the person has already committed a crime to the victim at the time of the investigation agency's commission of the crime. Since the subjective elements of the crime are not recognized by the victim, it is inevitable to determine ex post facto the crime according to the objective circumstances revealed externally. The objective circumstance must be taken into comprehensive consideration the distance between the victim's criminal record, criminal tendency, target crime and the victim, profits that the victim obtains by the motive or the victim from the crime, technology and method of the investigation agency, and circumstances leading the investigation agency to investigate the crime.

[2] In a case where an investigative agency (public prosecutor) ordered a partner Gap to propose the purchase of phiphones, and arrested Eul, arrested Eul, and prosecuted the defendant Gap who sought phiphones by giving and receiving or selling phiphones, the case dismissing the prosecution against the defendant Eul who directly sought phiphones on the ground that the defendants Eul who directly sought phiphones on the ground of the circumstance that they became the object of prosecution investigation, criminal records of the defendants, criminal records of the defendants, continuity of the act, specific roles, etc., were found guilty, and the prosecution against the above cooperationer Gap and the defendant Gap is dismissed by considering the so-called "ducal investigation by inducing type"

[1] Article 13 of the Criminal Act / [2] Article 13 of the Criminal Act, Articles 4 and 60 of the Act on the Control of Narcotics, etc., Article 327 subparagraph 2 of the Criminal Procedure Act

Defendant 1 and one other

Defendant and one other

Kim Jong-chul

Attorney Kim Shin-hoon

Seoul Northern District Court Decision 2005Da2567, 2005Da3167 decided Jan. 12, 2006

All appeals filed by the Defendants and the Prosecutor are dismissed.

The ninety-one day under confinement before the pronouncement of this judgment shall be included in the penalty of the original judgment against Defendant 1.

1. Summary of grounds for appeal;

A. The defendant 1 and the prosecutor's argument about the investigation of vessel

Of the facts charged in the instant case, the lower court rejected Defendant 1’s allegation on the ship investigation and convicted Defendant 1, but sentenced Defendant 2 to dismiss the prosecution on the ground that the Defendants conspired to commit the instant crime on October 6, 2005 and received 0.1g of philopon and sold 4g of philopon.

As to this, Defendant 1 asserted that the lower court erred by not recognizing the above Defendant’s investigation, and the prosecutor asserts that the lower court erred by recognizing Defendant 2 as a naval investigation.

B. Defendants’ assertion on unfair sentencing

Considering the fact that the Defendants divided their mistakes, and that the prosecution committed the instant crime with the opportunity to commit the instant crime, the punishment sentenced by the court below (Defendant 1, Defendant 1, and Defendant 2, Defendant 8) is too unreasonable.

2. Determination:

A. As to the investigation of vessel

(1) The broad meaning of naval investigation is divided into so-called “opportune provided type” and “inducuous type of crime”. The former is deemed reasonable by simply providing a person having the criminal intent with an opportunity to commit a crime or facilitating a crime. On the other hand, the latter is in violation of the legal principles of integrity and due process of the investigation required by the State.

The distinction between the above two naval investigations depends on whether the victim had already had the intention to commit the crime at the time of the investigation agency. Such prior criminal intent is a subjective element, and so long as the victim did not recognize it, it should be determined ex post facto due to the objective circumstance revealed externally. The objective circumstance should be comprehensively taken into account the previous conviction of the victim, the criminal inclination, the distance between the victim and the victim, the profits gained by the motive or the victim of the crime, the teacher's technology and method of the investigation agency, and the circumstances leading the investigation agency to investigate the vessel.

(2) Based on the above criteria, Defendant 1 and 2’s prior criminal intent are examined.

In light of the evidence duly admitted and examined by the court below, the non-indicted witness's statement cannot be seen as a person who committed a narcotics offense, and from the standpoint of the investigative agency, there seems to be no need to actively conduct a naval investigation (referring to a broad meaning of the investigation). The method of investigation is limited to the extent that the non-indicted et al. merely made the non-indicted et al. make a proposal to purchase the phiphones several times during a month to the defendant 2, and arrest the defendants who tried to use the phiphones. However, narcotics crime is the most type of crime that needs to be provided opportunity due to identity of the criminal and the victim, and the non-indicted et al. from the perspective of the non-indicted et al., need to cooperate with the prosecutor in order to create a public service for her husband detained for a narcotics crime. In such a situation, the two of the defendants was first exposed to the prosecution intelligence, which was subject to the investigation by the prosecutor, and the non-indicted et al. was directly and indirectly affected by the prosecutor's office.

Next, prior to the instant case, Defendant 1 had already been sentenced to sentence due to the administration and sale of phiphones, and the term of punishment was terminated one year and six months after the completion of the instant crime. On the other hand, Defendant 2 was prosecuted with the foregoing facts charged without the criminal records related to the narcotics. On the other hand, Defendant 1’s active nature of the narcotics crime, such as soliciting or aiding and abetting the administration of phiphones, is negative, while Defendant 1 was in charge of the administration of phiphones to Defendant 2. Defendant 2 was closely in charge of mediating the Nonindicted Party and Defendant 1, on the other hand, setting the volume and price conditions of phiphones, Defendant 1 sought to directly engage in the instant narcotics sales, and Defendant 2 tried to have sold the instant narcotics in excess of the distance between Defendant 1 and the phiphones. In particular, Defendant 2 was trying to sell the instant narcotics by carrying the phiphones to the extent that he had been in charge of arranging the phiphones and the instant sales of the instant narcotics.

(3) Considering the aforementioned circumstances, Defendant 1’s prior criminal intent seems to have no difficulty. On the other hand, Defendant 2’s method is simple and cannot be viewed as having no narcotics-related nature. However, in light of the remaining standards of blin, it is difficult to conceal Defendant 2 to the extent that there is no reasonable doubt that Defendant 2 had a prior criminal intent, and there is no other evidence to acknowledge it.

(4) From this point of view, the court below acknowledged Defendant 1 as having been guilty of the above facts charged by deeming Defendant 1 as an opportunity-based naval investigation, and dismissed Defendant 2 as having been regarded as a criminal intent-oriented naval investigation, and there is no error by misapprehending the facts leading to such conclusion or by misapprehending the legal principles, thereby adversely affecting the conclusion of the judgment, and thus, we cannot accept all appeals filed by Defendant 1 and the prosecutor.

B. On the grounds of unfair sentencing

In lieu of the Defendants, the Defendants generally are committing the instant crime, and the fact that the prosecution's naval investigation had significant impact on the background leading to the instant crime, etc., may be considered for the Defendants; however, all the Defendants are in the period of repeated crime; in particular, Defendant 1 committed the instant crime again within one year and six months after the expiration of the term of punishment due to medication of narcotics; and in light of all other sentencing conditions, including the means and methods of the instant crime, and circumstances after the instant crime, it is not deemed that the sentence imposed by the lower court is too heavy, and thus, the above appeal by the Defendants cannot be accepted.

3. Conclusion

Therefore, all appeals by the Defendants and the Prosecutor are dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Young-chul (Presiding Judge)