2018Gohap827 Narcotics Control Act (narcotics) and Narcotics Control Center, etc.

Violation of Korean law (or law)

A

Kim Sung-hun (prosecution) and Song-chul (public trial)

Law Firm Taeoka

Attorney Kang Chang-chul, Counsel for defendant

Law Firm Rotteusus

Attorney Kim Tae-hoon

February 15, 2019

A defendant shall be punished by imprisonment for not less than one year and six months.

However, the execution of the above punishment shall be suspended for three years from the date this judgment became final and conclusive.

To order the defendant to be put on probation for two years, to provide community service for 80 hours, and to take a course of pharmacologic treatment for 40 hours.

80,000 won shall be additionally collected from the defendant.

The defendant shall be ordered to pay an amount equivalent to the above additional collection charge.

Of the facts charged in the instant case, the violation of the Act on the Control of Narcotics, etc. is acquitted.

The summary of the acquittal part in this judgment shall be publicly notified.

Criminal facts

Even if the Defendant is not a person handling narcotics,

1. Using ccars in the manner of inhaleing ccars with D, at the residence of Gangnam-gu Seoul Metropolitan Government Btel C around March 2017, and in the manner of inhaleing ccars with D, narcotics;

2. Around June 10, 2017, the ls, a psychotropic drug, was administered in a way that enables the use of ls, a psychotropic drug with ls, D, and G in Songpa-gu, Seoul, together with water to see that EXMA (hereinafter referred to as “EXP”) was 1 as well as water, and ls, a psychotropic drug, was used in a way that lsD 1 attached in lsD.

Summary of Evidence

1. Court statement of the defendant (the fifth court date);

1. Statement of the accused in the first protocol of trial;

1. The entry of witness D in part of the third protocol of trial;

1. Some prosecutor's statements concerning D;

1. D letters;

1. Details of He mobile phone H calls and guidance concerning base stations of A;

1. Investigation report (the confirmation of the fact of withdrawal at 119 containers);

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 60(1)1, Article 3 subparag. 1 (the point of using a ccar, the choice of imprisonment), Article 60(1)2, Article 4(1)1, and Article 2 subparag. 3(b) of the Narcotics Control Act (the point of using a ccar), Article 59(1)5, Article 3 subparag. 5, and Article 2 subparag. 3(a) (the point of using a lsD) of the Narcotics Control Act

1. Aggravation for concurrent crimes;

Articles 37(former part), 38(1)2, and 50 of the Criminal Act (aggravating concurrent crimes with punishment prescribed in the Act on the Control of Narcotics, etc. (aggravating Crimes concerning the Use of ls with the largest ls)

1. Suspension of execution;

Article 62(1) of the Criminal Act (The following consideration of favorable circumstances among the reasons for sentencing):

1. Probation, order to provide community service and attend lectures;

Article 62-2 of the Criminal Act, Article 59(1) of the Act on Probation, etc.

1. Confiscation;

The main sentence of Article 67 of the Narcotics Control Act

1. Additional collection:

The proviso to Article 67 of the Narcotics Control Act

[Calculation of Surcharge] 80,000 won

○ The Cocar referred to in Paragraph 1 of the holding: The price cannot be calculated because the quantity of the Cocar administered is not specified.

○ X-si as referred to in paragraph (2) of the holding: 80,000 won per time cancer transaction price.

lsD referred to in Paragraph 2 of the judgment of the court below: A prosecutor seeks to collect this part of lsD sales on the premise that D purchased 40,000 won per lsD from the Defendant; however, as seen below, the Defendant acquitted the Defendant on the fact of lsD sales, and the price of lsD sales on the one-time medication is not formed, so the price cannot be collected additionally.

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Reasons for sentencing

1. Scope of recommended sentences according to the sentencing criteria;

(a) The first crime (the crime of violation of the Act on the Control of Narcotics, etc. due to the use of ls);

[Determination of Types] 4 Medication, Simple possession, etc. (Narcotic drugs and perfumesa, etc.)

[Scope of Recommendation] One year to Three years (Basic Area) imprisonment

(b) Second crime (the crime of violation of the Act on the Control of Narcotics, etc. (narcotics) due to the use of a cocar);

[Determination of Types] Medication, Simple Possession, etc. of Narcotics : 4 Types (Narcotic drugs, flaga, etc.)

[Scope of Recommendation] One year to Three years (Basic Area) imprisonment

(c) Crimes under Article 3 (Crimes of Violation of the Act on the Control of Narcotics, etc. by Medication, etc.).

[Determination of Types 3 (Determination of Types 7(b) and (c)) of Medication, Simple Possession, etc. of Narcotics]

[Scope of Recommendation] Imprisonment of 10 months to 2 years (Basic Area)

(d) The scope of final sentence due to the aggravation of multiple offenses: Imprisonment with prison labor for a period of one year to five years.

2. Determination of sentence;

Taking into account the following circumstances, the sentence of imprisonment with prison labor shall be imposed on the accused as the order and the execution thereof shall be suspended, by taking into account various sentencing conditions as shown in the records and arguments of this case, such as the age, character and conduct, environment, motive, means and consequence of the crime, and the circumstances after the crime, etc., and the probation, community service, and pharmacologic treatment imposed on the accused for proper treatment, edification, and prevention of recidivism.

○ Unfavorable Conditions

The illegality and possibility of criticism are high in that narcotics-related crimes are not easy to detect due to their characteristics, which make it difficult to lead a normal life by inducing physical and mental addiction, and may cause harm to national health or another crime.

The Defendant, together with D, administered and used various narcotics, such as cocars, Xers, and lsD, and even though he was aware that when returning to the Republic of Korea, he/she would be arrested at the investigative agency by the D’s information, he/she seems to have a lot of dependence on narcotics, such as administering cocars in Canada on August 2018, and smoking marijuana and returning to the Republic of Korea.

○ favorable circumstances

Defendant recognized all of the instant crimes and reflects his mistake in the Republic of Korea. Also, the Defendant is a primary offender who has no criminal record in the Republic of Korea. The Defendant is not dependent on narcotics, etc. while seriously resisting his/her behavior. However, the young age that the Defendant is yet able to expect the improvement and edification of personality and behavior, and the family relationship and social relationship between the neighboring people and the neighboring people, such as family members who can support it, are well maintained.

The acquittal portion

1. The summary of the violation of the Act on the Control of Narcotics, etc. due to the sale of lsD (hereinafter referred to as "the facts charged in this part") among the facts charged in this case

Although the Defendant is not a person handling narcotics, from April 26, 2017 to May 2, 2017, the Defendant saw 3 million won from D’s residence located in Gangnam-gu Seoul Metropolitan Government Office Officetel C, and sold LSD 75 psychotropic drugs to D’s residence.

2. Defense of the accused and arranged of issues;

The Defendant, along with “D, recognized the fact that he administered and used ccars, X posters and ls as indicated in the facts charged, but there is no fact that he sold ls 75 Chapter to D, and there is no direct evidence that conforms to the above facts charged, D’s prosecutorial office and this court’s statement to the effect that the Defendant purchased ls 75 Chapter from the Defendant. Accordingly, the conclusion of this part of the facts charged is different depending on the credibility of D’s statement.

3. Basic facts

The following facts are acknowledged based on the evidence duly adopted and investigated by this Court.

A. D and the Defendant used, at the residence of D, etc. from March 2017 to June 15, 2017, not only used and administered cocars, X posters and ls as indicated in the judgment, but also smoked marijuana and used merpters (hereinafter referred to as “one-time penphone”). Most of the narcotics used by the Defendant at the time were provided by D.

B. D was arrested on June 15, 2017 on the charge of smoking marijuana, and was released at that time, following the Defendant’s economic situation and the Defendant’s use of violence. D was arrested on the charge of smoking marijuana on June 15, 2017, and was arrested on July 14, 2017, and was arrested on the charge of other narcotics and detained on August 7, 2017 (including the instant marijuana smoking that was investigated by the Defendant’s report at the prosecution; hereinafter referred to as the “previous case”). On October 20, 2017, the Defendant was sentenced to imprisonment for three years and six years from the above court, and the Defendant appealed on the charge of smoking by Seoul High Court Decision 2017329.

C. On December 22, 2017, and February 21, 2018, the said appellate court accepted D’s defense counsel’s request seeking “Continuation of the date of submission of solar data” and sentenced D’s decision to dismiss the appeal on March 28, 2018, when D continued to submit additional sentencing data, and D’s failure to submit additional sentencing data. Although Defendant appealed by Supreme Court Decision 2018Do7743, Jun. 29, 2018, the judgment of the first instance court became final and conclusive as it is.

D. D paid KRW 45 million to the defense counsel of the previous appellate court at the time of the previous appellate court’s proceeding (hereinafter referred to as “one-person public document”), but failed to obtain a legitimate confirmation of investigation cooperation from the investigative agency. In addition, D sent a letter to the prosecution investigator at around February 2018, when the appellate court was proceeding, containing the following (hereinafter referred to as “information of this case”), and at the prosecutor’s office, made a statement that corresponds to the facts of criminal facts as indicated in the judgment on February 7, 2018 (However, the date of use of two-cars was stated as the first policeman on April 7, 2017) and LSD purchase (hereinafter referred to as the “Investigation Record”), and made a statement that conforms to the facts of purchase (hereinafter referred to as “SD investigation records”).

◆ D 서신◆2015년 6~7월경 A(이 사건 '피고인'을 가리킨다, 이하 같다)는 J 콘서트에서 자신이 직접 밀반입하여 가져온 캐나다산 대마성분의 젤리와 사탕을 저와 저의 지인에게 교부 및 투약하였고,2017년2월말경3월중순경에A는캐나다의지인으로부터2g정도의코카인,LSD 액체 100방울짜리 1통, 그리고 대마초, 전자담배 액상 카트리지를 우편으로 받아 밀반입하여 투약하였으며, LSD와 전자담배는 보지 못하였으나 코카인은 A가 저희 집에서 3월초경과 5월 말경 2회 빨대로 흡입하여 코로 투약하는 것을 보았습니다.

3. Determination

A. Relevant legal principles

The facts charged in a criminal trial must be proved by the prosecutor, and the judge should be convicted with evidence having probative value, which leads to the conviction that the facts charged are true beyond a reasonable doubt. Thus, in a case where the prosecutor’s proof does not sufficiently reach the degree of conviction, even if there is suspicion of guilt against the defendant, it should be determined with the benefit of the defendant (see, e.g., Supreme Court Decision 2005Do767, Apr. 15, 2005).

C. Whether the D statements are reliable

In light of the above facts and the following facts and circumstances acknowledged by the evidence duly adopted and investigated by this court, it is difficult to believe that the prosecutor's office and each of the statements in this court in the following purport that "the defendant purchased lsD 75 from the defendant from April 26, 2017 to his domicile on the first 5th of the same month."

1) The motive for making D’s false or exaggerated statements

A) On February 7, 2018, D stated in the first investigation of the prosecution of the instant case that “I did not hidden and make statements to A during the investigation process, I would like to make a statement that I would be punished as it is, and that I would like to take this fact into account in the trial process of the lower court.” (No. 17 of the investigation record),” and stated in this court that “I would like to recognize the counsel (the counsel of the previous appellate court of the instant case) as an important investigative cooperation by stating that “I would know that I would like to have any other person who committed a more serious crime than the crime described in the indictment, and inform A of the fact that I would like to cooperate in the investigation.”

B) In addition, the letter prepared by D around January 2018 to send it to K, "I would like to see what kind of garbage "A" to be mixed, "I would like to see it to the prosecution," and "I would like to see credibility in the statement to be lowered to 2:1, and issue a warrant of arrest to the prosecution. The warrant of arrest will be issued as a witness to secure M, Norna's statement. At that time, I would like to look at all the circumstances, and I would like to see that I would like to see that I would like to see I would like to see I would like to see I would like to see I would like to see I would like to see if I would like to see I's large number of witnesses, so I would respond to the situation that I would like to know how I would visit or respond to I's statement, and I would like to know that I would have made a wrong statement to the prosecutor's office on August 6, 2018."

C) In light of the above facts, D was thought to have been arrested by the Defendant, and when it was sentenced to heavy punishment than that it was anticipated in the first instance court of the previous case, when it was informed of the Defendant’s sale of narcotics, such as smuggling and lsD, it was recognized by the prosecution that it could lead the Defendant to the public in favor of the appellate court of the previous case, and there was a strong incentive and desire to implement it. The motive for the statement of D’s falsity and director is sufficiently recognized.

2) Failure to comply with D’s statements

가) D이 검찰에 제출한 이 사건 제보 서신에 피고인의 이 사건 LSD 매도 범행에 관한 아무런 기재가 없고, 오히려 'LSD를 보지 못했다'는 취지의 기재만 있다. 또한 D은 2018, 2, 20. 제2회 검찰 조사 시 '피고인이 LSD 150장 정도를 가지고 와서 그 중 100장을 사려고 하였으나 피고인이 300만 원 분량(1매당 4만 원)인 75장을 사라고 하여서 75장을 매수하였다'는 취지로 진술하였고(수사기록 제14면), 2018. 8. 7. 피고인과 대질 시 "피고인이 캐나다에서 100방울짜리 LSD 액상을 들여와 가지고 있던 종이(LSD시트)에 뿌려서 LSD를 흡착시킨 것을 저에게 가지고 왔습니다. 그래서 제가 100매 짜리 한 개를 400만 원(1매 당 4만 원)에 사겠다고 하니, A가 아는 형과 자신이 쓸 것이 있어야 한다고 해서 제가 300만 원 상당의 LSD 75매를 매수하였다'고 진술하였으며(수사기록 259면), 이 법정에서는 '피고인이 LSD 100장을 가지고 와서 그 중 75장을 300만 원에 샀다'는 취지로 진술하여 LSD 매수 당시 피고인이 가지고 온 LSD의 총량에 관하여 일관되지 않는 진술을 하였다.

B) According to the records and videos of A’s mobile phone H H call, the base station’s guidance, investigation report (the analysis of monetary records) and video, the day between D’s house located in the Gangnam-gu Office Btel C from April 26, 2017 to May 26, 2017 and the day between D’s house located in the Seocho-gu Seoul Metropolitan Government Office Btel C (the day between Apr. 26, 2017 and the day between Apr. 27, 2017 and the same month (the Investigation Record No. 147) of May 13, 2017 and the day between May 14, 2017 (the Investigation Record No. 149) are two times (the Defendant was on his own office twice a week).

D On February 7, 2018, when the first public prosecutor's statement was made on February 7, 2018, "A" gave her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her hers her her

한편 피고인은 2017. 5. 13. ~ 같은 달 14. 행적과 관련하여 'D으로부터 대마초를 구매하기 위하여 D의 집에 갔는데, 연락이 안 되어 새벽에 D의 집에 들어갈 수 있었다. 대마초 2g을 36만 원에 주고 샀는데, D이 적은 돈을 버는 자신을 조롱하였다. 이에 평택으로 돌아가던 중 112에 전화하여 신고하기 위하여 알아보았지만 투약으로 처벌받는 것이 무서워 전화 후 취소하였다'는 취지로 변소하고 있고(피고인의 2018. 9. 20.자 진술서), 이에 반하여 D은 이 법정에서 매도 당일의 행적과 관련하여 '피고인이 저녁 때 자신의 집에 도착하여 대마초를 피운 후 LSD를 매도하였다'고 진술하고 있다.

However, according to the aforementioned evidence, the Defendant’s arrival at Samsungdong-gu Seoul on May 13, 2017 at around 23:16, but the arrival at the above D’s house on May 14, 2017 at around 06:25, and the fact that the Defendant called on May 14, 2017 at around 16:49, and this corresponds to the Defendant’s appeal.

C) Other circumstances

1) On May 14, 2017 and June 15, 2017, the Defendant tried to inform or inform of D's narcotics crimes by making phone calls to 112 twice twice, and on June 15, 2017, D's arrest was also conducted on June 15, 2017. If the Defendant was in a situation in which ls are sold and is subject to severe punishment as in this part of the facts charged, it would have not been necessary to inform the investigation agency of D's above.

2) D was in the position of drug suppliers, such as purchasing ls, X-mail, etc. using the Internet from February 2, 2017 to June 2017, by providing the Defendant with hemp, X-mail, and penphones, etc. free of charge (the claim that D provided the Defendant with narcotics equivalent to KRW 20 million to KRW 30 million to KRW 30 million), and selling the hemps over two occasions. On the contrary, there is no objective data to recognize that the Defendant sought ls from a third party or carried them in a foreign country using international mail, etc.; and there is no objective data to support that the Defendant paid lss purchase price to the Defendant as lss. Moreover, no objective data was submitted regarding the source of KRW 3 million.

C. Sub-committee

For the same reason, as seen earlier, insofar as the prosecutor’s office and each statement in this Court, which are directly evidence of the facts charged, are not reliable, it is insufficient to recognize that this part of the facts charged, solely with the incidental and indirect evidence or circumstantial evidence submitted by the prosecutor, has been proven to the extent that the judge is excluding the reasonable doubt.

4. Conclusion

Thus, this part of the facts charged against the defendant constitutes a case where there is no proof of facts of crime, and thus, the defendant is acquitted under the latter part of Article 325 of the Criminal Procedure Act, and the summary of the part of innocence in this judgment is publicly announced under the main sentence of

The judge of the presiding judge shall be net;

Judge Han-soo

Judges Choi Dong-hwan