1. The facts found by the court below are as follows.

In accordance with the former Social Protection Act (amended by Act No. 7656, Aug. 4, 2005; hereinafter “former Act”), the Plaintiff was subject to the enforcement of protective custody from April 13, 1995 pursuant to the former Social Protection Act (amended by Act No. 7656, Aug. 4, 2005; hereinafter “former Act”). On March 20, 200, the Plaintiff was released from the provisional protective custody facility on March 24, 200, and thus, was subject to probation (see Article 10(1)1 of the former Act) from that time.

However, the Plaintiff committed a crime corresponding to imprisonment without prison labor or heavier punishment during the period of probation (from March 24, 2000 to March 23, 2003) between October 19, 2002 and November 14, 2003, and was sentenced to 10 years of imprisonment at the Seoul High Court on July 11, 2003, and the above judgment became final and conclusive by the Supreme Court on September 23, 2003. The Plaintiff discovered that the Plaintiff committed a crime corresponding to the above imprisonment without prison labor or heavier punishment during the period of probation and notified the Defendant. Accordingly, the Defendant revoked the provisional release by applying Article 30(1)1 of the former Act to the protective custody of the Plaintiff (hereinafter “instant release”).

2. The lower court determined that the instant disposition was null and void. The reason is that Article 27(1) of the former Act provides that “The execution of protective custody shall be exempted for a probationer for whom probation has commenced upon expiration of the probation period,” and considering the following circumstances, the revocation of provisional release under Article 30(1) of the former Act shall be allowed only before the expiration of the probation period, and even after the expiration of the probation period, the revocation of provisional release under Article 30(1) of the former Act shall not be revoked after the expiration of the probation period, even if there are grounds stipulated in any of the subparagraphs of Article 30(1) of the former Act. Nevertheless, the illegality of the instant disposition taken pursuant to Article 30(1)1 of the former Act after the expiration of the probation period shall be significant and obvious in light of the circumstances stated in its reasoning.

① In other words, even if there is no provision regarding the period for the revocation of provisional release under Article 30(1) of the former Act, it is difficult to present the concept of revocation or re-execution of provisional release under Article 27(1) of the former Act. ② Article 30(1) of the former Act, which is the basis for the disposition of this case, provides that the application of this provision to a person whose probation period has already expired, is not clear in itself, as long as the application of this provision is prescribed as the application of the provision as “Probation” is prescribed as the basis for the disposition of this case. ③ Since a protective custody disposition related to this provision is an expropriation disposition that deprives of physical freedom, as in substance, it is necessary to strictly limit the scope of the application of this provision in line with the language and purport thereof. ④ Even at any time after the expiration of the probation period, the execution of protective custody can be re-execution for the sole reason specified in each subparagraph of Article 30(1) of the former Act.

3. In light of the structure, language, and purport of the relevant provisions of the former Act and the former Act of the Social Protection Act (Act No. 7656 of Aug. 4, 2005), and the degree of illegality of the disposition of this case and other circumstances revealed in the records, the court below is justified to determine that the disposition of this case is null and void because the illegality of the disposition of this case is significant and obvious, even if there were grounds prescribed in any of the subparagraphs of Article 30 (1) of the former Act during the probation period after the expiration of the probation period. In addition, the court below did not err by misapprehending the legal principles on the legal provisions such as Article 30 (1) of the former Act or the grounds for nullification of the administrative disposition of this case, thereby affecting the conclusion of the judgment.

4. Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)