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(영문) 대법원 1984. 2. 28. 선고 83도3249,83감도550 판결

[상습사기ㆍ보호감호][집32(1)형,469;공1984.4.15.(726) 560]

Main Issues

Standard for calculating the age of a protective custody subject(=Public notice of the judgment of the lower court)

Summary of Judgment

A person who is a student of October 2, 193 and is under 50 years of age at the time of the declaration of the first instance shall be subject to protective custody for 7 years pursuant to the proviso of Article 5(1) of the Social Protection Act for 50 years of age or over at the time of the pronouncement of the second instance judgment ( November 25, 1983).

[Reference Provisions]

Article 5 of Social Protection Act

Defendant and Appellant for Custody

Defendant and Appellant for Custody

upper and high-ranking persons

Defendant and Appellant for Custody

Defense Counsel

Attorney White-gu

Judgment of the lower court

Daegu High Court Decision 83No1341, 83No310 delivered on November 25, 1983

Text

The appeal against the accused case shall be dismissed.

The number of detention days after an appeal shall be included in the imprisonment.

The judgment of the court below and the judgment of the first instance on custody cases shall be reversed, respectively.

A person who is subject to protective custody shall be punished by seven years.

Reasons

The grounds of appeal are examined.

1. A prosecuted case;

Based on the records, we affirm the timely criminal facts of the first instance judgment, and cannot say that there are errors such as the theory of lawsuit in the process of evidence preparation or examination. Therefore, the judgment of the court below that maintained the above judgment is just and the theory of lawsuit that differs from the opinion of the court below is not adopted.

2. As to custody cases:

Article 5 (1) of the Social Protection Act provides that when persons eligible for protection are 50 years of age or older, they shall be placed under protective custody for 7 years.

According to the records, since it is evident that the applicant for a warrant of custody is 2 October 193, 193, the applicant for a warrant of custody is 50 years of age or older, the prior notice of the judgment of the court below should be placed under the protective custody for 7 years, not 10 years of age or 10 years of age, pursuant to Article 396 of the Criminal Procedure Act, but the judgment of the court below is not illegal since the court below maintained the protective custody for 10 years of which the judgment of the court of first instance was sentenced. In this regard, the judgment of the court below is not reversed on the grounds of this point. However, since it is deemed sufficient to render a judgment based on the records of Japan and the evidence investigated by the court of first instance and the court of first instance, it is recognized that the judgment of the court below regarding the protective custody case should be reversed and the decision of the court below should be rejected.

As seen above, it is clear that the petitioner for a warrant of custody is 50 years or older at the time of the declaration of the lower judgment. Thus, even if the person is under 50 years of age at the time of the declaration of the first instance court, the first instance judgment at the time of protective custody cannot be maintained pursuant to Article 5(1) of the Social Protection Act, and therefore, the first instance judgment cannot be reversed.

Therefore, the facts and evidence of a party member's direct judgment are the same as those of the judgment of the first instance. Accordingly, this is cited in the law as it is, and the applicant for the warrant was sentenced nine times before and after 7 years in total to nine times before and after the crime of this case, which is similar to the crime of this case, and again sentenced to imprisonment within three years after the execution of the final sentence. Thus, it constitutes a crime of fraud of this case, under Article 5 (1) 1 of the Social Protection Act, and under the proviso of the same paragraph, the applicant for the warrant is placed in the protective custody seven years.

3. For the above reasons, the appeal against the accused case is dismissed, and part of the detention days after the appeal is added to the custody case, and all the judgment of the original court and the first instance court are reversed, and the judgment is delivered with the assent of all Justices who reviewed the appeal to protective custody for seven years.

Justices Jeon Soo-hee (Presiding Justice)