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(영문) 헌재 2004. 2. 26. 선고 2001헌바75 결정문 [마약류관리에관한법률 제61조 제1항 제8호 위헌소원]
[결정문]
Claimant

[Judgment of the court below]

Cheong-gu person Lee ○-soo

Attorney Park Ho-young

relevant case

Seoul District Court 2001No6948 Act on the Control of Narcotics, etc. (mariana)

Text

Article 61 (1) 8 of the Act on the Control of Narcotics, etc. (amended by Act No. 6146 of Jan. 12, 2000 and amended by Act No. 6824 of Dec. 26, 2002) does not violate the Constitution.

Reasons

1. Case summary and the object of the trial;

A. Case summary

(1) While working in an entertainment drinking house (studal harassment), the appellant discovered the wild hemp powder, which was cut on the roadside side of the roadway, from around December 199 to Chuncheon, from around December 12, 199, to Switzerland, and followed the leaves of a volume of tobacco, and smoke out of the claim. On October 200, 200, ○○○, while she was scam in a state where she was scam at the time, she scam and scam in a state where she was scam in a state where she was scam in a state where she was scam in a state where she was scam and scam in a state where she was scam in a state where she was scam at the time.

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(2) The claimant was indicted for violating Article 20(1)3 and Article 4 subparag. 4 of the former Cannabis Control Act (amended by Act No. 6146 of Jan. 12, 200), Article 61(1)8 and Article 3 subparag. 11 of the Act on the Control of Narcotics, Etc. (amended by Act No. 6146 of Jan. 12, 2000; hereinafter “narcotics Control Act”) and filed a petition with the Seoul District Court for an adjudication on constitutionality of the lawsuit (amended by Act No. 6948 of Dec. 26, 2002), but the petition was dismissed on Sept. 27, 2001 (amended by Act No. 6824 of Dec. 26, 2001).

(b) Object of adjudication;

In Article 61 (1) 8 of the Narcotics Act, the object of the inquiry is “Smoking” part of “Smoking” of marijuana (the applicant filed an application for recommendation of unconstitutionality regarding the entire No. 8, but the applicant is at issue in the relevant case, and thus, the object of the inquiry in this case is limited to the “Smoking” part of marijuana. The contents and relevant provisions are as follows.

Article 61 (Penal Provisions) (1) Any person who falls under any of the following subparagraphs shall be punished by imprisonment for not more than five years or by a fine not exceeding fifty million won:

8. A person who smokes or takes in marijuana or marijuana seed coats, or who holds marijuana, marijuana seeds or marijuana seed coats for the purpose of smoking or taking in, or who trades or assists in the trade of, marijuana seeds or marijuana seed coats while knowing the fact thereof, in violation of subparagraph 11 of Article 3;

Article 3 (General Prohibition of Acts) No person shall commit any of the following acts:

1. Use of narcotics, etc. not prescribed by this Act;

7. Extraction of ingredients of psychotropic drugs under subparagraph 4 (a) of Article 2 from plants used as raw materials, the act of exporting or importing, trading, assisting in the trade of, giving or receiving, giving or receiving, smoking, or taking in such plants, or the act of possessing or owning such plants for the purpose of smoking or taking in: Provided, That the same shall not apply where approval has been obtained from the Commissioner of the

11. An act of smoking or taking in marijuana or marijuana seed coats, or an act of carrying marijuana or marijuana seed coats for the purpose of smoking or taking in, or an act of trading marijuana seeds or marijuana seed coats or an act of assistance in the trade thereof, knowing the likely purposes of smoking or taking in;

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Article 2 (Definitions) The definitions of terms used in this Act shall be as follows:

1. The term "narcotics, etc." means narcotics, psychotropic drugs and marijuana;

4. The term “psychotropic drug” means a drug that may affect the human central system, thus deemed, if misused or abused, to cause serious harm and danger to human body, and that falls under any of the following items and shall be determined by the Presidential Decree:

(a) A drug or a substance containing such a drug which has a high potential for misuse or abuse and currently has no accepted medical use in treatment, any misuse or abuse of which may lead to severe physical or psychological dependence due to lack of safety;

(b) A drug or a substance containing such a drug which has a high potential for misuse or abuse and has very limited medical uses in treatment, any misuse or abuse of which may lead to severe physical or psychological dependence;

(c) Medical fees less likely to be misused or abused than those referred to in items (a) and (b);

A drug or a substance containing such a drug, used for misuse or abuse, which, in turn, may lead to an unexpected physical dependence or severe psychological dependence.

(d) Drugs or substances containing them which have relatively less potential for misuse or abuse than those as referred to in item (c) and are used for medical treatment, and which, in case of misuse or abuse, are likely to cause physical or psychological dependence than those as referred to in item

(e) Mixed substances or preparations containing the substances listed in items (a) through (d): Provided, That those mixed with other drugs or substances and listed in items (a) through (d) which cannot be re-manufactured or prepared again, and which do not cause any physical or mental dependence, and which are determined by the Ordinance of the Ministry of Health and Welfare, shall be excluded;

5. The term "marijuana" means the hemp plant (cinsium), its resin, and all the products manufactured using the hemp plant or its resin as their raw materials. The proviso to the proviso to the aforesaid Article is omitted;

Article 4 (Prohibition of Handling Narcotics by Persons Other than Persons Handling Narcotics)

(1) A person other than a person handling narcotics shall not possess, possess, use, transport, control, import, export (limited to psychotropic drugs), manufacture, prepare, administer, trade, assist in trade of, give or receive, or deliver narcotics or psychotropic substances, cultivate, possess, possess, give or receive, transport, store, or use marijuana, issue a prescription stating narcotics or psychotropic substances, or manufacture ultra-narcotics: Provided, That he/she shall not fall under any of the following subparagraphs:

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this paragraph shall not apply in any case.

Article 61 (Penal Provisions) (1) Any person who falls under any of the following subparagraphs shall be punished by imprisonment for not more than five years or by a fine not exceeding fifty million won:

2. A person who smokes or takes in plants used as raw materials for the psychotropic drugs under subparagraph 4 (a) of Article 2, in violation of subparagraph 7 of Article 3, or who holds or possesses them for the purpose of smoking or taking in, or making others smoke or take;

3. A person who uses the psychotropic drugs (excluding the psychotropic drugs under subparagraph 4 (a) of Article 2) or marijuana in violation of subparagraph 1 of Article 3, or provides other persons with places, facilities, equipment, funds, or means of transport for performing the prohibited acts related to the psychotropic drugs (excluding the psychotropic drugs under subparagraph 4 (a) of Article 2) and marijuana, in violation of subparagraph 12

4. Trade, assistance in the trade of, giving or receiving, possession, possession, use, control, and preparation of the psychotropic drugs or other psychotropic drugs containing their substance under subparagraph 4 (d) of Article 2, in violation of Article 4 (1);

A person who manufactures, administers, or delivers, or a person who issues a prescription for psychotropic drugs;

2. The claimant's assertion, the grounds for dismissing the application filed by the court for proposing unconstitutionality, and opinions of related agencies;

A. The claimant's assertion

(1) The scope of punishment should be differentiated depending on the degree of dependence, gravity, danger, etc. on narcotics, etc., which are generally classified into strong narcotics and weak narcotics. However, punishing a person who committed a psychotropic-related crime belonging to the most weak narcotics by the same statutory penalty as that of psychotropic-related crimes belonging to the most weak narcotics is not only a violation of the equality principle but also a violation of the excessive prohibition principle.

(2) The hemps of the instant provision are defined as Kinvinael pursuant to Article 2 subparag. 5 of the Narcotics Act. This is not clear whether it includes the type of Kinvina Scina or Kinviluel, in addition to Kinvinael, since it is in violation of the principle of clarity in the principle of no punishment without the law, and if the hemps of this case are punished even in cases where it does not affect human body because Tetravinacination, which is a decinent component, is in violation of the principle of excessive prohibition.

B. Reasons for dismissing the court's request for unconstitutionality

The instant provision stipulates the same statutory punishment for the act of using, administering, etc. psychotropic drugs and the act of smoking or taking in marijuana and its seed coats, but such statutory punishment shall be punished by imprisonment for not more than five years or by a fine not exceeding 50 million won.

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Since the upper limit is limited only to the upper limit and the lower limit is not uniformly set, the court is able to fully reflect the sentencing in consideration of the degree of risk of narcotics, etc., and accordingly, there is a need to punish the act of smoking, etc. of marijuana more strongly than the act of using, etc. of using, etc. of psychotropic drugs. Therefore, the instant provision merely stipulates the same statutory punishment for the psychotropic drug offender and marijuana offender, it cannot be deemed that it violates the principle of equality

(c) Opinions of the Minister of Health and Welfare;

The issue of imposing punishment on a certain act is to be determined by the legislative parties in consideration of the state's situation and the people's legal sentiment, and it is difficult to view that the judgment on whether to punish marijuana and psychotropic drugs separately falls under the discretion of the legislative parties, and thus, failure to punish it constitutes an infringement of the claimant's right to equality. Since the upper limit of statutory punishment has been clearly set, the provision of this case can properly coincide with illegal acts and responsibilities depending on the degree of addiction and the nature of the crime committed in the course of sentencing, so it does not violate the principle of excessive prohibition.

3. Determination

A. Violation of the principle of clarity in the principle of no crime without law

(1) The claimant asserts that the provision on the elements of the crime of this case is in violation of the principle of clarity of the principle of no punishment without the law, since it is unclear whether it includes the hemp plant other than can be included. However, if the provision on the elements of crime is too abstract or ambiguous, it shall be in violation of the principle of no punishment without the law (see, e.g., Supreme Court Decision 96Hun-Ga16, Sept. 25, 1997; Supreme Court Decision 9-2, 312, 322; 93Hun-Ba50, Sept. 28, 1995; Supreme Court Decision 7-2, 297, 307; Supreme Court Decision 7-2, 297, 307; Supreme Court Decision 201Hun-Ga16, Feb. 16, 200; Supreme Court Decision 2008Hun-Ga14, Feb. 27, 2015).

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If its meaning can be embodied without concerns, it would not violate the principle of clarity in such a case.

(2) With respect to marijuana subject to punishment, Article 2 subparag. 5 of the Narcotics Act provides for its definitions. Following the general name of the hemp plants, the name of the school in the vegetable name called Kinnael is indicated in the vegetable name. Here, the meaning of this provision is about whether it refers only to the species among the plants in Kinnas, or whether it refers to all plants that belong to Kinnas, Kinnas, Kinnas, Kinnas, Kinnas, and Einnas, Einnas, and the vegetable of the 6th anniversary of the 1970 Act (Act No. 2230), Article 2 subparag. 6 of the Mege 1970, which provided that the 6th anniversary of the 6th anniversary of the 6th anniversary of the 1970 Act (Presidential Decree No. 1838, Jun. 8, 2007).

The issue is whether, after 1976, a plant subject to punishment, at the time of regulating marijuana-related activities under the Water-Related Drugs Control Act, was the entire plant belonging to Tetraroba or the Kinnas. The problem is whether the definition provision for marijuana-related activities was changed into the same form as the present after the 1976 was about whether the regulated plant was intended to reduce only the plants called Kinnasel from among the plants containing Tetrarovia ingredients. However, the legislative purpose of the Act in 1970 or the Cannabis Control Act in 1976 was to improve public health and to the present Narcotics Control Act in 1976, the legislative purpose was to reduce the scope of plants subject to punishment at the time of the legislation of the Cannabis Control Act or the Narcotics Control Act. The reason why the regulations on marijuana-related drugs were enacted at the time of the enactment of the Menasium-related Acts and the Menasium-related Acts and the Menasium-related Acts were to be punished as Menasium-related ingredients.

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From the point of view, the Act was aimed at promoting public welfare to protect the health of the people, and the current Narcotics Act also regulates the misuse and abuse of these ingredients containing partitions plants. In light of the legislative purpose and history of the regulations on marijuana as above, and the legislative process, there are no special grounds to regard marijuana under the Water Quality and Drug Control Act or marijuana under the current Narcotics Act as different from the hemp under the Narcotics Control Act. Thus, the plant of can be seen as marijuana under the current Narcotics Act. Therefore, even if the regulations of this case expressly state the hemp in the general title, it does not violate the principle of clarity of the principle of no punishment without law.

B. Whether the principle of excessive prohibition and the principle of equality are violated

(1) According to the provisions of this case, a person who smokes marijuana, etc. shall be punished by imprisonment for not more than five years or by a fine not exceeding 50 million won, such as a person who smokes the plants of the raw materials of psychotropic drugs (Article 61(1)4(b), (c), and (d) of Article 2 of the Narcotics Act (Article 61(1) and a person who uses the psychotropic drugs (Article 61(3)3). However, the above psychotropic drugs and marijuana are similar in that they cause decilation, but their ingredients, uses, and effects are different in terms of their ingredients, uses, and effects, so that they are consistent with the nature and responsibility of the relevant crime, barring any special circumstances. Psychotropic drugs are known to the degree of danger and harm compared to marijuana, and according to legislative precedents, it is more punished in cases of psychotropic drugs in the same form of action, based on this, to be punished as a case of marijuana. Therefore, it is doubtful that the provision of this case is identical to that of the act of smoking plants as a raw material for smoking.

(2) However, the issue of choice of the statutory penalty is not only a consideration of the nature of the crime and the legal interest and protection of the law, but also a comprehensive consideration of our history and culture, the current situation at the time of legislation, the general sense of values or legal sentiment of the people, and the criminal policy aspects for the prevention of crimes, and thus, a broad legislative discretion or freedom of formation should be recognized. Accordingly, the statutory penalty for a certain crime is more than the nature of the crime and the responsibility of the offender.

Unless it clearly violates the principle of equality and the principle of proportionality, etc. under the Constitution, such as the deprivation of balance in the criminal system, or the deviation of necessary degree in the achievement of the original purpose and function of the punishment for such crime, because it is remarkably harsh.

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However, it should not be readily concluded that such statutory punishment is against the Constitution of Liberia (Hun-Ba24, April 28, 1992; 4, 225, 229; 229; 91Hun-Ba11, April 20, 195; 7-1, 47; 7-1, 478, 487; 98Hun-Ba26, May 27, 199; 11-1, 62, 629; 629, Supreme Court Decision 11-1, 62, 629). Furthermore, such statutory punishment is desirable to maintain a certain range within the extent that it is not excessive for judges to lead a proper sentence equivalent to the offender's liability in light of the benefit and protection of the law as well as the nature of the crime in question, if the statutory punishment can be justified in light of the principle of proportionality to the extent that it is unconstitutional, 305Hun-Ba25, 1965, 1905

(3) Therefore, the reasonableness of the penal system seems to be ensured by accurately measuring the degree of danger of narcotics, etc. in itself, and strictly regulating the corresponding statutory penalty accordingly. However, in general, it is known that narcotics have influence on the human body and the degree of the climatic risks, but there is still no useful method to subdivide the degree of harm by narcotics, etc., and even if there is such a method, there is difference in efficacy within the same kind of narcotics, etc. depending on usage, usage or use. Therefore, even if the degree of harm is considered as the standard of statutory punishment, it is not possible to ensure the rationality of the penal system by uniformly dividing the severity of statutory punishment. Ultimately, even if the degree of harm is considered as the standard of statutory punishment, as long as it cannot guarantee a complete proportionality of illegal and liability, determination on dividing the severity of punishment is inevitable to respect the legislator’s decision. However, our legislators still establish and supplement the statutory punishment system in that it is difficult to determine the degree that there is a certain degree of possible difference between the aforementioned types of acts in light of the factors revealed in the current Narcotics Act, etc.

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It will be necessary to solve the problem through this.

(4) The current Narcotics Act, basically, provides that the same type of narcotics shall be higher than that classified into weak statutory penalties for narcotics and psychotropic drugs. Narcotics are divided into narcotics, psychotropic drugs and marijuana (Article 2 Subparag. 1). Inasmuch as psychotropic drugs are used for medicine up to item (a) and their types are subdivided in light of the degree of lack of safety (Article 2 Subparag. 4). The above narcotics are prohibited from handling or using them unless they are permitted by the authorities, and their prohibition against persons other than those under Article 3 and Article 4 are divided into those under Article 3 even if they are the same type of acts, and thus, their violations are more severe than those under Article 4 even if they are subject to punishment. Such acts are related to the sale or purchase of narcotics, etc. under Article 5 of the Act, and their distribution and purchase are more likely than those under Article 8 of the Act on the Protection, etc. of Psychotropic Drugs than those under Article 5 of the Act on the Protection, etc. of Psychotropic Drugs.

In addition, in the case of an act related to use, the act of providing places, facilities, equipment, funds or means of transport for the use and the prohibited act (Article 60 (1) 2) shall be punished by imprisonment for not more than 10 years or by a fine not exceeding KRW 100 million.

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The same applies to the psychotropic drugs under Article 2 subparag. 4 (a). In contrast, marijuana provides places, facilities, equipment, funds, or means of transport for the purpose of its use and such prohibited act (Article 61(1)3) and its seed coats to sell and take in marijuana seeds or marijuana seeds, or to sell and arrange the sale of marijuana seeds or marijuana seeds (Article 61(1)8) or to impose a fine not exceeding 50 million won upon the knowledge of the fact that the use and the use of marijuana are prohibited, or the possession of marijuana seeds or marijuana seeds for the purpose of such prohibited act, or that the act is knowingly carried out for such purpose. It seems that there is no big problem with the establishment of statutory penalty, taking into account the type and degree of danger of the act at the same time.

(5) To smoke and take in, except that Article 2 subparagraph 4 (a) of the Narcotics Act (Article 61 subparagraph 1) as raw materials for psychotropic drugs

An act of smoking, etc. of psychotropic drugs except subparagraph 2 of Article 2 and an act of using, etc. of psychotropic drugs except subparagraph 4 (a) of Article 2 are punished as the same statutory penalty as that of marith. However, in the case of psychotropic drugs other than that of item (a), the remaining psychotropic drugs used for medical treatment are relatively less potential for misuse or abuse or physical dependence than that of item (a), and thus, even if they are punished as a statutory penalty like marith by lowering the statutory penalty under item (a), it cannot be deemed significantly inconsistent with justice or fair. However, punishing the act of smoking, etc. of psychotropic drugs as the act of smoking, etc. of psychotropic drugs raw materials under item (a) as the act of smoking, etc. of marith of psychotropic drugs can be deemed to be less than the finished product. Nevertheless, it seems problematic to distinguish the statutory penalty from the relevant raw materials plant and finished product.

However, although it is generally known that the risks of marijuana are less than psychotropic drugs, it cannot be ruled out that the users of marijuana smokes, and the risk of other strong crimes cannot be ruled out in the state of stimulation. In fact, there are cases where a person who smokes marijuana uses marijuana in a mixed or group, and then commits violent crimes such as murder. According to the white paper on narcotics issued by the Supreme Prosecutors' Office, there are many cases where a person who smokes marijuana actually commits violent crimes such as murder. However, if a person who smokes marijuana kills a person in a knife in the end of a dispute over his knife, he reported the knife to the police, reported the knife of the knife and abandoned the body. Generally, it seems reasonable to distinguish the act of smoking, etc., which is a strong act of smoking, from the act of smoking, etc., the act of smoking the knife itself has a social meaning, such as the above cases.

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In light of the foregoing, smoking activities of marijuana may not be deemed to be weak in terms of the risk rather than that of smoking, etc. of raw materials of psychotropic drugs. Therefore, the smoking activities of marijuana need not be punished lower than that of psychotropic drugs. In light of the general risk, as the raw materials of item (a) are higher than that of marijuana, there is a need to correct the unreasonableness arising from the same statutory provision. From the perspective of the general risk, the range of appropriate statutory penalty should be set so that it can cope with various variable circumstances by determining the range of punishment. However, the provision of this case allows a fine of KRW 5,00,000 to be imposed in cases where the relevant crime is deemed to be bad in terms of imprisonment with prison labor for not more than five years or by a fine not exceeding 50,000 won, and thus, it cannot be said that arbitrary legislation is relatively less than that of a person who violates the justice on the grounds that the proportionality itself did not strictly observe the proportionality relation with the risk of smoking, and thus, it cannot be said that there is relatively less restrictive punishment than that of other types of psychotropic drugs or a judge.

(6) In addition, the claimant's act of smoking marijuana and violation of Article 4 (1) of the Narcotics Act, and violation of Article 2 (4) of the same Act.

Although it is problematic to punish the acts of selling, selling, arranging for the transaction of psychotropic drugs, giving or receiving, possessing, holding, using, controlling, preparing, medication, etc., the above acts related to psychotropic drugs are not prohibited by Article 3(1), but not prohibited by Article 3(1). Moreover, the above acts related to psychotropic drugs are used for medicine, and have low potential misuse, abuse, physical, and mental dependence, and thus, even if punishment is imposed as a statutory punishment such as smoking of marijuana, there is no serious problem. Furthermore, if the pertinent provision is intended to punish smoking of any substances that are not containing the tetrarorode Krarade or non-containing and that do not have any influence on human body, it is against the excessive prohibition principle. However, as seen above, the instant provision is intended to regulate substances that are contained in the terode, and it cannot be said to violate the excessive prohibition principle, since plants that are not contained therein are excluded from marijuana subject to regulation.

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4. Conclusion

It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon Young-young (Presiding Justice) Kim Young-il Kim Jong-sung Kim Jong-sung

E. E. B.O.D. P.D. P.D.

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심판대상조문

마약류관리에관한법률(2000. 1. 12. 법률 제6146호로 제정되고, 2002. 12. 26 법률 제6824호로 일부 개정된 것) 제61조 제1항 제8호 중 대마의 ‘흡연’ 부분

참조조문

마약류관리에관한법률 제2조 제1호, 제4호, 제5호, 제3조, 제4조, 제58조 제1항 제1호, 제3호, 제5호, 제59조 제1항 제12호, 제60조 제1항 제2호, 제61조 제1항 제2호, 제3호

습관성의약품관리법(1970. 8. 7. 법률 제2230호로 제정된 것) 제2조 제1항 제6호

습관성의약품관리법(1973. 3. 13. 법률 제2613호로 개정된 것) 제2조 제1항 제2호

습관성의약품관리법시행령(1970. 11. 3. 대통령령 제5378호로 제정된 것) 별표 제88호

습관성의약품관리법시행령(1973. 8. 9. 대통령령 제6806호) [별표 2]

대마관리법(1976. 4. 7. 법률 제2895호) 제2조 제1항

참조판례

가. 헌재 1995. 9. 28. 93헌바50, 판례집 7-2, 297, 307

헌재 1997. 9. 25. 96헌가16, 판례집 9-2, 312, 322

헌재 2000. 6. 29. 98헌가10, 판례집 12-1, 741, 748

헌재 2002. 4. 25. 2001헌가27, 판례집 14-1, 251, 260

나. 헌재 1992. 4. 28. 90헌바24, 판례집 4, 225, 229

헌재 1995. 4. 20. 91헌바11, 판례집 7-1, 478, 487

헌재 1995. 4. 20. 93헌바40, 판례집 7-1, 539, 553

헌재 1999. 5. 27. 98헌바26, 판례집 11-1, 622, 629

헌재 2001. 11. 29. 2001헌가16 판례집 13-2, 570, 581

판례관련자료

공보(제90호)

판례집(제16권 1집 )

피인용판례

2009헌바17, 2015.02.26

2007헌마949, 2009.09.24

2007헌가24, 2008.11.27

2007헌바11, 2008.11.27

2005헌마373, 2008.04.24

2006헌가12, 2006.12.28

2005헌바46, 2005.11.24

2003헌바104, 2004.11.25