2018Gohap21 Violation of the Narcotics Control Act (mariana)

A

Kim Jong-sung (prosecution) and Kim Jong-Un (Trial)

Attorney B, C.

March 23, 2018

A defendant shall be punished by imprisonment for not less than two years and six months.

Provided, That the execution of the above punishment shall be suspended for three years from the date this judgment became final and conclusive. 45,500 won shall be collected from the defendant.

The amount equivalent to the above additional collection charge shall be ordered to be paid provisionally.

Criminal facts

1. Import of marijuana;

Along with D, the Defendant, upon receiving orders from E located in the United States of America, agreed to import 12 marijuana (hereinafter referred to as "mariana") into the Republic of Korea, with D, which he had become aware of in the course of studying the United States of America, said D agreed to take charge of: (a) the transfer of orders and import payment for marijuana; (b) the domestic receipt; and (c) the distribution of marijuana mileage; (d) E purchased marijuana storages in the United States of America and concealed them in clothing, correspondence, etc.; and (e) the Defendant takes charge of raising the import payment to D.

In accordance with such a public offering, E shipped 12 marijuana 12, a sum of approximately 186.98g, in the United States of America, into plastic buffer materials, into the "D", "delivery paper", "F, Sero-gu, Sero-gu, dispute resolution koo", and sent them to the Republic of Korea, and sent them to the Republic of Korea. The above international mail entered into the Incheon National Port in collusion with D and E, and then imported marijuana in collusion with the United States of America.

2. Smoking marijuana;

A. On May 2017, the Defendant smoked, as if he smoked, a marijuana car store, which was put in an electronic pipe in the Defendant’s residential room near the Defendant’s residence located in the Young-siJ of Suwon-si, Suwon-si, as the Defendant smoked.

B. On November 29, 2017, around 22:00, the Defendant d’s vehicle parked on the street near the above Defendant’s residence, and smoked tobacco in a UV vehicle with a large amount of hemp ( approximately 0.5-1g ordinary smoking volume per time) onto roller, as the Defendant smoked. The summary of the evidence is as follows.

1. The defendant's partial statement in the first protocol of trial;

1. Statements made by witnesses D in part of the second trial records;

1. Examination of suspect suspect regarding D by the prosecution (second time);

1. Each protocol of seizure and list, records of seizure and protocol of seizure;

1. A response to an appraisal, a narcotics appraisal report, and an appraisal report;

1. Each investigation report, report on the detection of marijuana mileage by mail of the U.S. aeronautical station, and investigation report (related to additional collection charges against a suspect);

1. Detection photographs, marijuana photographs taken on June 27, 2017, contact numbers of "K stored in the suspect's mobile phone," and the contents of L dialogue divided by "K with the suspect," the contact numbers of "E stored in the suspect's mobile phone," the contact numbers of "E stored in the suspect's mobile phone," the letters written by dividing "E with the suspect," the text pictures of the suspect's remittance of marijuana proceeds to E, and mobile phone hosting photographs;

1. Decision on the violation of the Act on the Control of Narcotics, etc. (mariana) by the Seoul Central District Court 2017 Gohap1286;

Application of Statutes

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

Article 58(1)5 and Article 3 subparag. 7 of the Narcotics Control Act, Article 30 of the Criminal Act (the occupation of import of marijuana and the choice of limited imprisonment), Article 61(1)4 (a) and Article 3 subparag. 10 (a) of the Narcotics Control Act (the occupation of smoking marijuana and the choice of imprisonment)

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (within the scope of adding up the long-term punishment of each of the above crimes, among concurrent crimes resulting from the import of marijuana with the largest punishment, as provided for in the Act on the Control of Narcotics, etc. (

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following consideration for the reasons for sentencing):

1. Suspension of execution;

Article 62(1) of the Criminal Act (The following grounds for sentencing has been repeatedly taken into consideration for favorable circumstances)

1. Additional collection:

The proviso to Article 67 of the Narcotics Control Act [Calculation of Additional Charges] 45,500 won 1)

○ One smoking part of the marijuana cart set forth in Paragraph 2(a) of the Decision: 42,500 won (=4 purchase price of the four marijuana cart set 170,000 won: 492)

○ The smoking part of the hemp plant stated in the holding 2-b: 3,000 won 3)

1. Order of provisional payment;

Judgment on the defendant and defense counsel's assertion under Article 334 (1) of the Criminal Procedure Act

1. Summary of the assertion

With respect to the crime of importing marijuana as stated in Paragraph (1) of the judgment, the Defendant only intended to purchase four marijuana mileages from D, and did not conspired with D to commit the crime of importing marijuana. Even if the Defendant participated in the above crime, the Defendant is not a joint principal offender but a joint principal offender.

2. Determination

Joint principal offender under Article 30 of the Criminal Code is a joint principal offender under Article 30 of the Criminal Code with two or more joint principal offenders.

In order to establish a crime, as a subjective element, requires a fact of implementation through functional control over a criminal act based on a common intent as a co-processing’s intent and objective requirement, and the intent of co-processing ought to be integrated in order to commit a specific criminal act with a common intent, and the purport of co-processing shall be to shift one’s own intent by using another’s act. In full view of the status, role, control over the progress of the crime, etc., of a person who does not directly participate in part of the act constituting the elements of a crime in a whole crime, a person who is not carried out by directly sharing part of the act may not be deemed as a mere conspiracy, but may be punished as a so-called co-principal in cases where it is deemed that a functional control exists through an essential contribution to the crime (see, e.g., Supreme Court Decision 2016Do15470, Jan. 12, 2017).

In light of the above legal principles, the following facts are acknowledged according to the evidence duly adopted and examined by the court of this case.

1) Around November 2, 2017, 2011, D asked that the Defendant would be able to purchase marijuana mileage in the U.S., and that the Defendant would purchase four (4). On the same day, D remitted KRW 170,000 to D as the price for four (4) marijuana storage.

2) After having contacted E in the United States, D ordered 12 marijuana storages including four marijuana storages to be purchased by the Defendant, and transferred USD 525 to the price, USD 350 on November 7, 2017, USD 175 on November 15, 2017.

3) Accordingly, E, in the United States, concealed 12 marijuana mileage 12 in vinyl buffers, and sent them to D by international small mail, and the above international small mail arrived at the Incheon National Port on November 201, 2017, and 15:35.

4) On December 11, 2017, D complained of anxietys against the Defendant that the delivery of the said international mail was at the latest at the time of customs clearance. Accordingly, the Defendant continued to contact with the Defendant to verify and report the delivery capacity, and told the Defendant to know the delivery capacity, and discussed the receipt of the said international mail around December 11, 2017.

5) At around 09:20 on December 12, 2017, D was arrested at the post office of Seocho-gu, Seoul, and the said international mail was seized. In full view of the following circumstances, it is reasonable to view that the Defendant’s act was merely a functional act of purchasing marijuana from D or importing marijuana, not a functional act of facilitating import of marijuana, but a functional act of facilitating import of marijuana.

As a result, the defendant is liable for a crime as a co-principal, and the defendant and his defense counsel's above assertion is not accepted.

1. Reasons for sentencing: Imprisonment with prison labor for a period of two years and six months to twenty years;

2. Scope of recommendations according to the sentencing criteria;

(a) First offense: Offense of violating the Act on the Control of Narcotics, etc. (marijuth) by importing marijuana;

[Determination of Types] Export and Import, etc. of Narcotics Crimes in Types 2 (mariju, flac.)

【Special Convicted Person】

[Scope of Recommendation] Basic Field, 2 years to 4 years of imprisonment

(b) Crimes of Articles 2 and 3: Crimes of violation of the Act on the Control of Narcotics, etc. ( marijuana) due to smoking in marijuana;

[Determination of Types] 2 Medications, simple possession, etc. (ma) of narcotics crimes

【Special Convicted Person】

[Scope of Recommendation] Basic Field, 8th month to one year and six months. The final recommendation type based on the standards for handling multiple crimes: Imprisonment with prison labor for 2 years and 6 months to 5 years and 3 months [in accordance with the standards for handling multiple crimes, the ceiling of the second crime shall be determined by adding up 1/2 (9 months) and 1/3 (6 months) of the upper limit of the third crime according to the standards for handling at least 3 years and 1/5 years to the upper limit of the third crime, and the lower limit of the sentence to be recommended in the sentencing guidelines shall be set by law, since the lower limit of the scope of the sentence recommended in the sentencing guidelines is lower than

3. Determination of sentence;

The following circumstances and the defendant's age, character and conduct, environment, family relationship, motive, means and result of the crime, and various sentencing factors specified in the arguments in the instant case, such as the circumstances after the crime, shall be determined as the order.

○ Unfavorable Circumstances: Each of the crimes in this case is that the Defendant imported marijuana and smokeed twice, and narcotics-related crimes may not only harm the body and mind of an individual, but also cause harm to the national health or another crime.

The circumstances favorable to ○: (a) the instant crime of importing marijuana appears to have been committed for the purpose of personal smoking rather than for the purpose of obtaining profits by distributing imported marijuana in Korea; (b) the entire seizure of imported marijuana was not distributed to others; and (c) the degree of the Defendant’s participation is not significant. Moreover, the Defendant did not have any history of criminal punishment prior to the instant case.

The presiding judge, judges and assistant judges

Judges Park Jong-ro

Judges Park Jae-gu

1) As to the crime of importing marijuana as described in Paragraph 1 of the holding, the narcotics seized (12 marijuana knife knife knife knife knife knif

U.S. Central District Court Decision 2017Da1286 Decided January 31, 2018, 2017Dahap1286, 294 pages of investigation records), and the value of the confiscated narcotics shall not be collected additionally.

shall not be required.

2) As examined below, the Defendant: (a) at the time of committing the import of marijuana as described in Paragraph (1) of the holding, the purchase price for four marijuana carbage KRW 170,000.

The penalty surcharge shall be calculated on the basis of the payment of the penalty surcharge.

3) The monthly trend of narcotics, etc., published at the time near the sentencing date of this judgment, based on 3,000 won at the market value of the hemp once in November 2017.

Calculation (287 pages of investigation records) of the amount of requisition.