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(영문) 대법원 2014.06.26 2014도4950
마약류관리에관한법률위반(향정)
Text

The appeal is dismissed.

Reasons

The grounds of appeal are examined.

The judgment below

Examining the reasoning in light of the evidence duly admitted by the court below, the court below was just in finding the Defendant guilty of all the charges of this case on the grounds as stated in its reasoning, and there were no errors by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules or by misapprehending relevant legal principles

In addition, the argument that the indictment of this case constitutes abuse of prosecutor's right to institute a prosecution cannot be viewed as a legitimate ground for appeal, and furthermore, in light of the record, the indictment of this case does not constitute abuse of prosecutor's right to institute a prosecution.

On the other hand, the court which adjudicates on concurrent crimes stipulated in the latter part of Article 37 of the Criminal Act (hereinafter referred to as "Concurrent crimes") may determine the punishment within the applicable range of concurrent crimes in consideration of equity and the case where concurrent crimes for which judgment has become final and which have been concurrent crimes as provided in Article 39(1) of the Criminal Act are concurrently adjudicated. Whether to reduce or exempt the punishment for concurrent crimes belongs to the court's discretion.

(2) In light of the above legal principles, the court below erred by misapprehending the legal principles as provided in Article 39(1) of the Criminal Act, on the ground that the court below, while punishing the crime of violation of the Narcotics Control Act and the crime of violation of the latter part of Article 37 of the Criminal Act, which is related to the crime of violation of the Act on the Control of Narcotics, etc., for which judgment became final and conclusive, imposed the same punishment as imprisonment with prison labor sentenced by the court of first instance at its discretion, and contrary to what is alleged in the grounds of appeal.

In addition, the argument that the court below's decision was unlawful by infringing on the essential contents of the principle of balance of crime or the principle of responsibility in sentencing, thereby violating the principle of proportionality under the Constitution, constitutes an allegation of unfair sentencing.

However, there is a problem.

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