Defendant

Defendant

Lee Jong-chul, Lee Jong-soo, Lee Jong-soo,

Law Firm KEL, Attorney finalway

Seoul Central District Court Decision 2013Ma875 Decided July 25, 2013

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for a term of two years and two months.

17,050,000 won shall be additionally collected from the defendant.

1. Summary of grounds for appeal;

The punishment sentenced by the lower court to the Defendant (the punishment of four months for the violation of the Act on the Control of Narcotics, etc., before January 17, 2012, and the punishment of two years for the violation of the Act on the Control of Narcotics, etc. (the penalty of 17,050,000) after March 23, 2012, is too unreasonable.

2. Ex officio determination

A. The judgment of the court below

On September 20, 201, the lower court determined that Article 39 (1) of the Act on the Control of Narcotics, Etc. cannot be applied to the case where the Defendant was sentenced to a suspended sentence of two years on November 26, 201 after having been sentenced to a suspended sentence of two years on September 20, 201 due to a violation of the Act on the Control of Narcotics, etc. (hereinafter “the judgment”), and that on February 21, 2012, the Seoul Central District Court sentenced two years of a suspended sentence of eight months to a violation of the Act on the Control of Narcotics, etc. (hereinafter “the judgment”), which became final and conclusive on February 29, 2012. Since the judgment was deemed to relate to a crime committed on June 27, 2010 and was committed on June 27, 2010, the lower court determined that each of the latter part of Article 37(1) of the Act on the Control of Narcotics, etc. cannot be applied, but that each of the latter part of Article 39(27) of the Act is concurrent crimes.

B. Requirements for latter concurrent crimes of Article 37 of the Criminal Code

However, in light of the following circumstances, it is difficult for the lower court to accept the separate punishment on the ground that each of the crimes of violation of the Act on the Control of Narcotics, etc. (e.g., violation of the Act on the Control of Narcotics, etc., prior to January 17, 2012,

① The former part of Article 37 of the Criminal Act provides that several concurrent crimes which may be determined at the same time in a single trial (hereinafter “the same concurrent crimes”) shall be deemed concurrent crimes. Separately from those cases, the crime for which judgment has become final and conclusive and the crime committed before such judgment becomes final shall also be deemed concurrent crimes in the latter part (hereinafter “so-called ex post facto concurrent crimes”). Article 38 of the Criminal Act provides for the method of determining punishment for latter concurrent crimes of Article 37 of the Criminal Act; Article 39(1) of the Criminal Act provides, “The latter part of Article 37 of the Criminal Act provides for the punishment for more than seven concurrent crimes,” and Article 37 of the Criminal Act provides, “The latter part of Article 37 of the Criminal Act provides for the punishment for more than seven concurrent crimes which may be sentenced to punishment for which judgment has become final and conclusive,” and Article 37 of the Criminal Act provides that “The punishment for more than seven concurrent crimes may be mitigated than that for which judgment has become final and conclusive.”

C. Determination

However, even if the crime of violation of the Act on the Control of Narcotics, etc. (fence) and the crime of violation of the Act on the Control of Narcotics, etc. (fence) by January 5, 2012 and the crime of violation of the Act on the Control of Narcotics, etc. by January 17, 2012 are crimes before and after the judgment at the same time, the punishment should be separately determined even if the judgment is rendered at the same time. Thus, it cannot be deemed that each of the above crimes is concurrent crimes

Therefore, the judgment of the court below that separately determined the punishment on the grounds that the crime of violation of the Act on the Control of Narcotics, etc. (flag) and the violation of the Act on the Control of Narcotics, etc. (flag) committed on January 5, 2012 and on January 17, 2012, each of the crimes of violation of the Act on the Control of Narcotics, etc. (flag) committed on January 17, 2012,

3. Conclusion

Therefore, the judgment of the court below is reversed pursuant to Article 364 (2) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing, and the judgment below is again decided as follows after oral argument.

The summary of the facts constituting the crime recognized by this court and the evidence thereof is cited as it is in accordance with Article 369 of the Criminal Procedure Act, except where the relationship of criminal records stated in the first head of the original judgment is omitted.

1. Article concerned of the facts constituting the crime and the selection of the kind of punishment;

on or before April 6, 2012: Articles 60(1)3 and 4(1) and 2 subparag. 4(b) of the former Act on the Control of Narcotics, Etc. (Amended by Act No. 10786, Jun. 7, 201)

Since the end of December 2012, 2012, the trading and medication of phiphones: Articles 60(1)2, 4(1)1, and 2 subparag. 3(b) (Optional to Imprisonment) of the Act on the Control of Narcotics, Etc.

1. Aggravation for concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

1. Additional collection:

The proviso of Article 67 of the Narcotics Control Act

In full view of the following circumstances: (a) the Defendant committed the instant crime without being aware of the fact that he/she had been under suspension of the execution of the same crime; (b) the amount of philopon handled by the Defendant is large and the number of times of the commission; and (c) the Defendant’s age, character, conduct, environment, motive, means and consequence of the commission of the instant crime; and (d) other various conditions attached to the arguments and the sentencing

Judge Kang Jong-hee (Presiding Judge) (Presiding Judge)

(1) Paragraphs (1) to (4) see Seoul High Court Decision 2011No176 decided March 31, 201.