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The judgment below
We reverse the part concerning collection among the penalty surcharges.
136,00 won shall be additionally collected from the defendant.
(b) the defendant;
Reasons
1. The summary of the grounds for appeal (unfair sentencing) of the lower court’s punishment (an additional collection of KRW 1,20,5-9 and KRW 135,059) is too heavy or (an additional collection of KRW 1,20,000).
2. Determination
A. We examine ex officio prior to the judgment on the grounds for ex officio appeal.
The lower court sentenced the Defendant to the additional collection of KRW 135,059.
The amount of the above additional collection is the sum of the value of approximately 0.03 g (10,000 won) of the penphones received by the defendant from the person who is in the name of the defendant on January 30, 2017 (2) of the judgment below) and approximately 7.65 g (35,059 won) of the penphones purchased from the person who is in the name of the defendant on January 31, 2017 (2) of approximately 7.53 g (35,059 won) other than the seized.
However, Article 67 of the Narcotics Control Act provides that temporary narcotics, facilities and equipment funds or transportation means of narcotics, etc. and profits therefrom, which have been provided for a crime under this Act, shall be confiscated, but if such confiscation is not possible, the equivalent value thereof shall be collected. If confiscation is impossible, the value to be collected refers to the amount equivalent to the gains that the offender would have lost if he/she had been sentenced to confiscation. Thus, the value shall be calculated based on the price at the time when the judgment is rendered (see Supreme Court Decision 2010Do8764, Oct. 28, 2010). Accordingly, in relation to the crime of paragraph 2 of the judgment below, 36,00 won (=(7.65g - 7.53g) 】 300,000 won (Evidence 180,000 won (Evidence 180, the evidence record) per 1g, the retail price in Busan area.
Therefore, the lower court erred by misapprehending the legal doctrine on additional collection under the Narcotics Control Act, thereby adversely affecting the conclusion of the judgment.
B. The fact that the Defendant’s purchase of philophones is not a considerable amount of 250 times medication, and the Defendant appears to have a high risk of addiction by distributed philophones to residential areas and vehicles for a short time, and repeated medication, etc.