[폭력행위등처벌에관한법률위반·보호감호피고사건][고집1981(형특),197]
The case dismissing a request for protective custody for habitual offenders that there is no risk of recidivism
The risk of recidivism cannot be recognized in the case of committing minor violence at the drinking place where he/she was engaged in his/her occupation without any particular misconduct for four years after he/she was released.
Article 5 (2) 2 of the Social Protection Act
November 24, 1981, 81Do2564 (Court Official Gazette 672, 90 pages), 81Do316, 81do104 decided Feb. 23, 1982 (Court Official Gazette 679, 402 pages), 81Do327, 81do154 decided Apr. 13, 1982 (Court Official Gazette 682, 513 pages)
Defendant
Chuncheon District Court (81 Gohap17, 81 Gohap4 decided)
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for not less than two years and six months.
One hundred-five days of detention days prior to the pronouncement of the original judgment shall be included in the above sentence.
A seized tar (No. 1) shall be confiscated.
The request for custody of this case is dismissed.
The summary of the grounds for appeal by the defendant's state appointed defense counsel is as follows: first, although the defendant did not have a habit of violence, the court below erred by misunderstanding that the defendant committed an habitual violence by applying Article 3 (3) of the Punishment of Violences, etc. Act in the event that the court below found the defendant guilty of the facts charged in this case and habitually committed an act of violence; second, the defendant is in a state of mental disorder due to drinking only at the time of the crime of this case, and so the so-called punishment of the defendant's judgment is not punishable or his punishment should be mitigated; second, the court below's action did not reach this point has affected the judgment by misunderstanding of the facts, misunderstanding of the legal principles as to the grounds for the establishment of a crime, misunderstanding of the facts, or misunderstanding of the legal principles as to the grounds for reduction of or exemption from punishment; third, the summary of the grounds for appeal by the defendant and the defendant's appeal is due to the sentencing of the victim non-indicted 1 and the married couple except for the crime of this case.
Therefore, the first point of the grounds for appeal by the defendant's state appointed defense counsel is health, the criminal records of the defendant recognized by the evidence duly examined and adopted by the court below, and the motive, method, and circumstances after the crime of this case are sufficient to consider that the defendant has a habit of violence. Thus, the court below's action that judged that the defendant has habitualness of violence is just and there is no error of misunderstanding of facts as pointed out by the theory of lawsuit, and the above argument is groundless.
Next, according to each evidence of the court below's reasoning for appeal, although the defendant was found to have been under drinking at the time of the crime of this case, it can be easily known that the defendant did not have the ability to discern things or make decisions, or that the defendant did not have the weak ability to do so. Thus, the above argument on appeal is without merit.
Next, in light of the present conditions of sentencing in the instant case, such as health zone, Defendant’s age, environment, character and conduct, motive for and method of the crime of this case, degree of damage, relationship with the victim, circumstances after the crime, etc., the sentence imposed by the court below on the criminal defendant case, which is a violation of the Act on the Punishment of Violences, etc. against the Defendant, seems to be too heavy (three years of imprisonment). Accordingly, the Defendant’s appeal on this point is reasonable, and the part on the criminal defendant case against the violation of the Punishment of Violences, etc. Act among the judgment below should be reversed.
Then, according to the reasoning of the judgment below, the court below acknowledged the possibility of recidivism as a person who is habitually recognized due to multiple criminal facts and sentenced him/her to a protective custody for the requester pursuant to Article 5(2)2 of the Social Protection Act, and sentenced him/her to seven years pursuant to Article 5(2)2 of the same Act. We examine whether the applicant for protective custody is in danger of recidivism as referred to in Article 5(2)2 of the same Act.
According to the evidence of the court below at the time of the trial, the requester for the warrant of detention was sentenced on December 29, 1969 to imprisonment with prison labor for the crime of attempted rape and was sentenced on December 21, 1973 again on December 21, 1973, and three years have passed since the execution of the sentence was completed, and there was a person who completed the execution of the sentence on September 7, 1976 and is recognized as habitually committing an act of violence due to several criminal facts, such as the time of original trial. However, according to the records of the custody (No. 45 of the investigation records), this case committed by the requester for the warrant of custody, except for one criminal act at the time of original trial, is a minor degree of damage caused by the second conviction between the victim and the non-indicted 1 who was in a relationship with the defendant and the non-indicted 1 who was habitually under the influence of all the above facts, and there is also a lack of agreement between the victim and the non-indicted 1 who committed an act of violence at the end.
Thus, since there is no evidence to acknowledge the risk of repeating a crime against the requester for protective custody in this case, the court below's disposition that sentenced the requester for protective custody for seven years should be dismissed, without any evidence, to recognize the "risk of recidivism" under Article 5 (2) 2 of the Social Protection Act or to mislead the misunderstanding of the legal principles as to the above, and thus, the part of the court below's judgment on the claim for protective custody against the requester for protective custody should also be reversed.
Therefore, the judgment of the court below shall be reversed in accordance with Articles 364(2) and 364(6) of the Criminal Procedure Act, and the judgment shall be rendered again after pleading as follows.
Criminal facts and evidence which a member found guilty are identical to each other in the reasoning of the judgment below, and all of them are cited as it is.
The so-called "the judgment of the defendant" is comprehensively subject to Articles 3 (3) and (1), 2 (1), 260 (1), 257 (1), and 366 of the Punishment of Violences, etc. Act, and Article 260 (1), 257 (1), and 366 of the Criminal Act, and the defendant selects a limited term of imprisonment. The defendant is not subject to punishment considering the agreement with the victim non-indicted 1 in light of the victim's non-indicted 1, and there is a reason to take into account the circumstances, such as the fact that the mistake is unsatisfy, and the fact that the situation is unsatisfy, etc., the defendant is unsatfyed and reduced under Article 55 (1) 3 of the same Act. The defendant shall be punished by imprisonment for not more than two years and six months within the term of punishment, and the 105 days in the number of detention days prior to the declaration of the judgment of the court below under Article 57 of the same Act, and one (No. 1) shall be confiscated.
A prosecutor claims that a person subject to protective custody shall be subject to seven years of protective custody by applying Article 5(2)2 of the Social Protection Act on the ground that he/she is a person who is habitually recognized for committing several criminal facts and is likely to commit a crime subject to death penalty, imprisonment for life or for a maximum of five years or more and is in danger of re-offending. However, there is no evidence to acknowledge the risk of re-offending against the person subject to protective custody for the same reason as seen earlier, and thus, the prosecutor dismissed the request for protective custody of this case pursuant to Article 20(1) of the Social Protection Act.
It is so decided as per Disposition for the above reasons.
Judges Kim Young-jin (Presiding Judge)