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The judgment of the court below is reversed.
Defendant
A shall be punished by imprisonment of one year and two months, and by imprisonment of one year and six months, respectively.
Reasons
1. Summary of grounds for appeal;
A. The sentence of Defendant A (one year and six months of imprisonment, confiscation, and collection) by the lower court is too unreasonable.
B. The sentence of Defendant B (two years of imprisonment, additional collection) by the lower court is too unreasonable.
2. Determination
A. Prior to the judgment ex officio (part on Defendant A) on the grounds for appeal by the Defendant A, the lower court sentenced the said Defendant to imprisonment with prison labor, and sentenced the said Defendant to an additional punishment that the evidence Nos. 1 through 4 confiscated from the said Defendant.
However, according to the evidence such as the general list of seized articles, seizure records, appraisal records, etc., it is recognized that the whole amount of 0.06 g of the seized evidence No. 1 Mesphere, 0.06 g, 2 Mesphere, 0.06 g, 0.06 g, 3 Mesphere (tobacco), 0.05 g, 0.05 g, 0.1 g of No. 4, 0.6 0.6 g, which is all consumed by the National Science Investigation and Research Institute to assess the detection of Mesphere at the National Institute.
According to the above facts of recognition, since the above-mentioned Mesa Pacos who were consumed had not existed at the time when the judgment of the court below was rendered, it was impossible to pronounce the judgment of confiscation (see, e.g., Supreme Court Decision 2009Do6982, Jan. 28, 2010). The court below erred by misapprehending the legal principles on confiscation, which affected the conclusion of the judgment, and thus, the judgment of the court below is no longer maintained.
B. In determining the grounds for appeal by Defendant B, the crime of selling and medication of this part of the Mesa ambacule can be punished for the same kind of crime, and the crime is more serious in light of the quantity of the Mesacule who sold the above Defendant’s Mesacule that was administered once, without being aware of the fact that Defendant B was punished for the same kind of crime, and even during the period of repeated crime due to the same crime.
However, the circumstances leading up to the crime of selling the mail of this case by the above defendant are somewhat somewhat different.