[보호감호][공1993.11.1.(955),2841]
A. Whether Article 5 of the Social Protection Act is unconstitutional
B. Whether a protective custody can be sentenced again upon a change in a request for protective custody in a retrial case against a person who was sentenced to protective custody pursuant to Article 5(1) of the former Social Protection Act (amended by Act No. 4098 of Mar. 25, 1989) which became unconstitutional
A. Article 5 of the Social Protection Act is a violation of the principle of res judicata, the principle of prohibition of double punishment, and Article 13 of the Constitution that provides for the principle of no punishment without law, or a violation of the right to a trial.
B. In the case of a review with respect to a person who was sentenced to protective custody pursuant to Article 5(1) of the former Social Protection Act (amended by Act No. 4098 of Mar. 25, 1989), whose effect had been retroactively lost pursuant to the proviso of Article 47(2) of the Constitutional Court Act due to the decision of unconstitutionality of the Constitutional Court, the court may again sentence the person to protective custody upon a prosecutor’s request for change of protective custody and may not violate Article 13(1) of the Constitution.
A.B. Article 13(a) of the Constitution, Article 27 of the same Act, Article 5 of the Social Protection Act, and Article 5(b) of the former Social Protection Act (amended by Act No. 4098, Mar. 25, 1989); Article 5(1) of the former Social Protection Act (amended by Act No. 4098, Jul. 14, 1989);
A. Supreme Court Decision 89Do138 delivered on December 8, 1989 (Gong1990,421) 90Do135,90Do19 delivered on March 27, 1990 (Gong1990,1024) (Gong1990,1024) 90Do208 delivered on January 15, 1991 (Gong1991,787) B. Supreme Court Decision 90Do127 delivered on July 26, 1991 (Gong190,2959) 91Do158 delivered on July 26, 1991 (Gong191,2280)
A
Applicant for Custody
Attorney B
Seoul High Court Decision 92Rano2 delivered on June 9, 1993
The appeal is dismissed.
53 days out of the number of days of detention after an appeal shall be included in the period of custody.
The grounds of appeal by the respondent and the defense counsel are examined together.
1. The provision of Article 5 of the Social Protection Act is not against the principle of prohibition against double Jeopardy, the principle of prohibition against double punishment, the principle of prohibition against double punishment, and Article 13 of the Constitution that provides for the principle of no punishment without prison labor, nor does it infringe on the right
2. In the case of a review with respect to a person who was sentenced to protective custody whose retroactive effect was lost pursuant to the proviso of Article 47(2) of the Constitutional Court Act due to the decision of unconstitutionality of the Constitutional Court, if the person in question has "risk of re-crime", the court may again sentence a protective custody upon the prosecutor's request for protective custody and shall not violate Article 13(1) of the Constitution.
3. Comprehensively taking account of the employment evidence of the first instance court as cited by the lower court and the employment evidence of the lower court, the risk of re-offending to the applicant for the re-offending can be fully recognized, and there is no error of misunderstanding of legal principles or misunderstanding of facts as to the risk of re-offending, such as
4. Therefore, the appeal shall be dismissed, and 53 days out of the number of days of detention after the appeal shall be included in the custody period. It is so decided as per Disposition by the assent of all participating Justices.
Justices Chocheon-sung (Presiding Justice)