B. The meaning of "where a person is the same as a criminal under Article 6 (2) 1 of the Social Protection Act"

(c) The meaning of "crimes stipulated in Acts other than the Criminal Act" under Article 6 (2) 4 of the Social Protection Act, and the same and similar nature of crime of intrusion upon residence and rupture, and whether it is similar to or similar to the crime of attacking upon residence (negative)

B. "Name of a crime" under Article 6 (2) 1 of the Social Protection Act refers to the specific name of a crime provided in the Criminal Code or the law other than the Criminal Code, and the name of a crime of violation of the law (for example, the name of a crime of violation of the Criminal Code or the Punishment of Violences, etc. Act) is not the same.

C. The crime stipulated in the same Act other than the Criminal Act (e.g., the crime of violation of the Punishment of Violences, etc. Act) is not determined as the same or similar type of violation pursuant to Article 6(2)4 of the Social Protection Act, but should be determined by considering the violation, and the same or similar type of violation (Majority Opinion).

(d) The crime of intrusion upon residence and the crime of attacking upon residence are not the same or similar crimes as provided in Article 6(2)6 of the Social Protection Act.

(1) According to the facts established by the court below, the defendant was sentenced to imprisonment with prison labor for 10 months and 2 years for a violation of the Punishment of Violences, etc. Act on January 28, 197 and for 10 years for a violation of the Punishment of Violences, etc. Act on May 28, 197, and 2 years for a violation of the Punishment of Violences, etc. Act on the date of violation of the Punishment of Violences, etc. Act. The crime of this case was committed as a violation of the Punishment of Violences, etc. Act on March 30, 1981, which was committed a violation of the Punishment of Violences, etc. Act on March 22, 1981 and a violation of the Punishment of Violences, etc. Act on the face and chest of the victim at around 2 weeks for the chest. Thus, the court below dismissed the defendant's criminal offense and the crime of robbery committed by the defendant and the crime of this case on the basis of the same or a similar crime under Article 6 (2) of the Social Protection Act on the ground that they were not less than 1/1/5 years of the term of punishment.

(2) However, the crime of quasi-Robbery is a combination of the crimes of larceny and property, life, and body, under which the thief uses violence or intimidation in order to resist recovery of stolen property, to escape arrest or to destroy a trace of the crime. Therefore, it is reasonable to view that the act of assault or intimidation and the act of assault or intimidation by violence of the crime of this case constitutes an infringement on life and body without any difference in that it constitutes an infringement on life and body. In light of the records, it is reasonable to view that the act of assault or intimidation by violence of the crime of this case constitutes the same or a similar crime.

(3) Ultimately, the court below erred in the misunderstanding of the legal principles of a crime of the same kind or similar under the above law, and erred in its application. The part of the court below's dismissal of the claim for care and custody is reversed, and that part of the case is remanded to Seoul High Court for further proceedings consistent with this Opinion. The prosecutor's ground of appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

2. In determining the above claim for custody, the court below added the period of punishment to all the defendant's violation of the Punishment of Violences, etc. Act and the crime of violation of the Punishment of Violences, etc. Act two times prior to each of the defendant's previous convictions as the same or similar crimes. This is the same as the case where "the name of the crime is the same" under Article 6 (2) 1 of the Social Protection Act or the case where "the crime is the same" under Article 6 (2) 4 of the same Act was viewed as "the case where the crime is committed under the same Act other than the Criminal Act".

However, since the opinions of party members on this point are different, it is intended to clarify them for the trial of the appellate court after remanding, even though they do not affect the conclusion of the judgment of party members of this case.

(1) First of all, considering the contents of each subparagraph of Article 6 (2) 1 of the Social Protection Act in comparison with each other, it is clear that the name of a crime under Article 6 (2) 2 of the same Act means a specific name of a crime under the Criminal Code or laws other than the Criminal Act, and that the name of a crime under the law is the same as the name of a violation of the Punishment of Violences, etc. Act, regardless of whether a "violation of the Criminal Act" is "violation of the Punishment of Violences, etc. Act," and therefore, it cannot be readily concluded that only the name of a crime under Article 6 (2) 1 of the same Act is the same as the name of a crime under Article 6 (2) 2

(2) Next, according to Article 6(2)4 of the Social Protection Act, the term “crimes stipulated in the same Act other than the Criminal Act” is defined as crimes of the same kind or similar nature, but there are cases where it is difficult to readily conclude that all of the crimes are identical or similar to those stipulated in the same Act other than the Criminal Act. Therefore, the above subparagraph 4 ought to be limited interpretation.

In other words, Article 6 (2) 1 through 5 of the Social Protection Act can be deemed as a tangible type of crime of the same or similar kind, and Article 6 (2) 6 of the same Act can be deemed as a complementary type of the above tangible type. Among the above tangible types, Article 6 (2) 1 through 5 of the same Act provides that there is no problem, but subparagraph 4 (the same applies to subparagraph 5 based on this subparagraph) is a crime provided in the same Act. If it is interpreted that the necessity to consider the contents of all the crimes provided in the same Act is always the same or similar type of crime, there is a case in which balance with subparagraphs 1 through 3 of the above tangible type is lost, and it is also inconsistent with subparagraph 6 of the above intangible type.

If a law other than the Criminal Code separately combines crimes concerning the aggravated punishment of crimes as provided for in the Criminal Code, it is reasonable to view that there is no similarity between the crimes concerning the aggravated punishment as provided for in Article 6 (2) 1 through 3 of the Social Protection Act, unless there are circumstances of the special group if it is recognized that there is no similarity between the crimes as provided for in Article 6 (2) 1 through 3 of the Social Protection Act (in case of recognizing the same or similar nature on the grounds of specific circumstances by subparagraph 6), notwithstanding the fact that the crimes concerning the aggravated punishment are provided for in the same law, there is a case where the crime concerning the aggravated punishment loses the balance among the crimes provided for in subparagraphs 1 through 3 of the same Article.

In addition, even if a crime is included among the crimes prescribed by the laws, for which it is difficult to recognize the same or similar nature by subparagraph 6 is included, if all of the crimes are deemed to be identical or similar solely on the ground that they are the crimes which are incorporated by a single law, it would result in contradictions in which crimes that are not recognized as similar or similar to the crimes.

Therefore, in the case of a law that is likely to cause such imbalance or inconsistency, it shall not be determined by Article 6 (2) 4 of the Social Protection Act as the crime of violation of the law, but it shall not be determined as identical or similar to the same and similar violation, and it shall be determined by considering the violation.

Now, this Act was enacted for the purpose of punishing a person who commits an act of violence, etc. in a group, habitually or at night. The purpose of this Act is to punish the person who commits an act of violence, etc. as prescribed in the respective rules of the Criminal Act. As for the crime of injury, assault, arrest, confinement, threat, residential intrusion, denial of evacuation, obstruction of obstruction of exercise of rights by violence, threat, and destruction and damage, etc., such as habitual, night or at least two persons, joint threat of force of an organization or a group or group, force or force of a group or group, or aggravation of the requirements for aggravation of carrying with a deadly weapon, etc., (Articles 2 and 3) and the use of an organization (Article 4), organization (Article 5), etc. established under the same Act (Article 7), judicial police officer (Article 9), and the crime of abandonment of duties (Article 9) and the crime of abandonment of duties of an organization such as the above organization can be deemed as a crime of aggravation of duties and bribery of public officials as prescribed under the Criminal Act.

However, in comparison with each of the above crimes, for example, the crime of intrusion upon residence at night (Article 2(2) and (1) of the Social Protection Act, Article 319 of the Criminal Act, and Article 350 of the Criminal Act). The former is an aggravated type with an aggravated element of increase at night in relation to the crime of intrusion upon residence under the respective provisions of the Criminal Act, and the latter is an aggravated type with an aggravated element of increase as a habitual element in relation to the crime of attack upon residence. The latter is an aggravated type with an aggravated element of increase as to the crime of attack upon residence under the respective provisions of the Criminal Act. Even though it is obvious that there is no such an aggravated kind or similar nature as a type of crime under Article 6(2)1 through 3 of the Social Protection Act, the crime of intrusion upon residence and public conflict under each of the respective provisions of the Criminal Act is not sufficient, and if it is deemed that the above aggravated type of crime is a same or a similar crime with another aggravated element, it cannot be said that the above crime of attack is not balanced with the above crime of assault.

Furthermore, in comparison with other crimes under Article 6 (2) 6 of the Social Protection Act, the crime of neglecting duties by a judicial police officer (Article 9) among the crimes provided for in the Punishment of Violences, etc. Act is clearly a crime for which it is difficult to recognize the same or similar nature of other crimes even in accordance with Article 6 (2) 6 of the same Act, and it cannot be said that such crime is a crime of the same or similar kind with other crimes only on the ground that it is provided for in the same Act. If it is viewed as a crime of the same or similar kind, it can not be said that it is a crime of the same or similar kind.

Ultimately, the Punishment of Violences, etc. Act is a law that leads to the loss of balance or inconsistency with other cases provided for in Article 6 (2) 1 through 3 and 6 of the Social Protection Act in cases where all of the crimes provided for in the Act are deemed to be identical or similar to those of the same kind. Thus, it is evident that all of the above crimes are crimes of violation of the Act and it cannot be readily concluded as crimes of the same kind or similar as a matter of course by Article 6 (2) 4.

(3) The purpose of the Social Protection Act is to promote rehabilitation and protect society by issuing a protective disposition against a criminal suspect who is in danger of recidivism or a person who needs special education improvement or treatment, and the purpose of this Act is not to say that it is sufficiently respected in the application of this Act. However, as long as this Act provides that a criminal record, which is the protective custody requirement under Article 5, shall be the same or similar crime, the interpretation of the same or similar type of crime shall not be neglected. Thus, the court below should determine whether the criminal record constitutes a crime of the same or similar type of crime by concluding that the criminal record is the same or similar crime among the criminal records of the criminal defendant or on the ground that it is a crime stipulated under the same Act, and determine whether the criminal record constitutes a crime of the same or similar type of crime by taking specific name of the violation.

This view is consistent with all the opinions of the Supreme Court judges, excluding the same kind of rule, the same franchisium, and the same franchisium.

(4) The dissenting opinion of the Supreme Court Justice Lee Il-sung, Lee Jong-sung, and Lee Jong-dae is as follows.

Since the term "crimes of the same kind or similar kind" in Article 5 of the Social Protection Act is not an established concept, it explains the criteria set forth in Article 6 (2) of the same Act.

The 1 to 5 set the formal and regular standards, and 6 set the specific facts of the crime.

In addition, since the above six criteria start from a different point of view, it is not necessary to think of the common concept between the above standards, so it is not likely that there is a contradiction in the balance by directly keeping another standard on the basis of either one.

In addition, the 4th "in the case of a crime provided for in the same law other than the Criminal Act" is a variety of crimes provided for in a certain single law other than the Criminal Act among the multiple control laws other than the Criminal Act. Accordingly, a variety of crimes provided for in the Punishment of Violences, etc. Act are the same or similar crimes among them.

In this regard, the majority theory means that there is no kind or similarity under Article 6 (2) (1) through (3) of the Social Protection Act between several crimes under the same Act, but it is not necessary to base 1 to 3 in interpreting subparagraph 4 of the same Article. In the reversely speaking, it is necessary to set forth in subparagraphs 1 through 3 alone.

In addition, the majority theory concludes that the crime under the above Punishment of Violences, etc. Act is a crime concerning double punishment of the Criminal Act, but the crime concerning aggravated punishment referred to in subparagraphs 3 and 5 of the same Article is a crime as prescribed in the Criminal Act (in the case of aggravated punishment within the Criminal Act, it is resolved in 2 as it is stipulated in the same Chapter). It is interpreted as a law enacted for the purpose of aggravated punishment of the crime referred to in other Acts than the Criminal Act, and in exceptional cases, it is interpreted as the Act on the Aggravated Punishment, etc. of Specific Crimes, and the Act on the Special Measures for the Control of Public Health Crimes, etc., and there is a provision for aggravated punishment of the crime as prescribed

In the National Security Act and the Forestry Act, there are crimes of aggravated punishment (Article 4 of the National Security Act, Article 116 of the Forestry Act, Article 119 of the same Act, and Article 119 of the same Act, etc.). It is said that all of them are crimes concerning aggravated punishment. Since this Act was enacted for a specific purpose, it is simple that each crime as prescribed by the Act is regarded as a crime of the same kind or similar under the specific purpose, and it belongs to a net interest.

Therefore, there is the same or similar relationship between the crimes of violation of the Punishment of Violences, etc. Act enacted for the purpose of punishing the crime of violence.

Justices Park So-young (Presiding Justice) Lee So-young (Presiding Justice) Lee So-young, Kim So-young, Lee So-young, Lee So-young, Kim So-young, Lee So-young