마약류 자기사용죄에 있어서의 공소사실의 특정

Count Specification in Illegal Drug Use Cases

Article 254 (4) of the Criminal Procedure Act provides that “The Facts constituting the crime shall be stated clearly by specifying the time & date, place, and method of crime”. In case the facts constituting the crime(count) is not be stated clearly, the public prosecution shall be dismissed by judgement. The legislative purport of ‘count specification’ is not only set limits to object of trials, but also protect the procedural rights of defendants. For that reason the time & date, place, and method of crime in the prosecution shall be stated clearly for defendants so as to exert their procedural rights without difficulty. In the ‘illegal drug use case’, however, not a few suspects deny their crimes. In such circumstances, prosecutors have no choice but to presume the date of crime ust basing urine analysis or hair analysis. So, the facts constituting the crime have to be stated generally. The Supreme Court tended to take a generous stand on the issue of ‘count specification’ in illegal drug use cases before the 2000s. However, in 1999, the Supreme Court dismissed ‘illegal drug use case’ just based on hair analysis. [Supreme Court Decision 1998Do3293 Delivered on June 11, 1999 [Violation of the Act on the Control of Narcotics, etc. (Psychotropic)]. After that, the Supreme Court tends to judge illegal drug use cases on a case by case basis. Therefore, it is necessary to analyze the standpoint of the Supreme Court and suggest a manifest criterion on that issue. Issues of this paper are admissibility & reliability of hair analysis as an evidence, count specification & object of trials in the ‘illegal drug use case’ and related problems. This paper reviews leading precedents on the issues and suggests possible solutions to the problems.