(영문) 수원지방법원 2017.02.10 2016노8370 | 리걸엔진

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(영문) 수원지방법원 2017.02.10 2016노8370

마약류관리에관한법률위반(향정)

Text

All appeals by the defendant and the prosecutor are dismissed.

Reasons

1. Summary of grounds for appeal;

A. Defendant 1) Of the facts constituting the crime of the lower judgment’s judgment, the Defendant did not sell a phiphone to D, and only received 80,000 won from D from D, with respect to the part of the crime of the lower judgment [2016 Highest 2133].

2) The sentence of the lower court (a year of imprisonment, confiscation, additional collection of KRW 950,00) that is unfair in sentencing is too unreasonable.

B. The Prosecutor’s sentence of the lower court is too unhued and unreasonable.

2. In light of the difference between the method of evaluating the credibility of the first instance court and the appellate court in accordance with the spirit of the substantial direct trial principle adopted by the Criminal Procedure Act as an element of the trial-oriented principle, the first instance court’s decision on the Defendant’s assertion of mistake was clearly erroneous in the first instance court’s determination on the credibility of the statement made by the witness of the first instance court in light of the contents of the first instance judgment and the evidence duly examined by the first instance court.

Unless there exist extenuating circumstances to see the credibility of the statement made by a witness of the first instance trial and the result of further examination of evidence conducted by the time the appellate court final and conclusive proceedings, the appellate court should not reverse without permission the first instance judgment on the sole ground that the first instance judgment on the credibility of the statement made by the witness of the first instance is different from the appellate court’s judgment (see, e.g., Supreme Court Decision 2011Do5313, Jun. 14, 2012). In light of the above legal principles, a thorough examination of the evidence by the lower court, such as the witness D and I’s legal statement by the lower court, was clearly erroneous in the lower court’s determination on the credibility of the statement made by the witness.

There is no special reason to view that the defendant has sold phiphones to D at the time, time, and place of the ruling, so the defendant's assertion of mistake is without merit.

3. The defendant's crime of determining the unfair argument of sentencing between the defendant and the prosecutor.

참조판례

-대법원 2012. 6. 14. 선고 2011도5313 판결

유사 판례

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-수원지방법원 2016.08.19 2015노7690

-전주지방법원 2018.01.18 2017노1450