[특정범죄가중처벌등에관한법률위반피고사건][하집1986(2),412]
The case where it is found that there is no risk of recidivism even if habitual crime is committed during the suspended period.
The defendant is older than 57 years old, and after being released from the final course, he had lived in good faith, such as the conduct of clothes, the crime of this case was contingent, and the crime of this case was committed only once. The crime of this case was simple, and the damage was only 8,500 won at the market price, and the case is minor. After the judgment of the first instance court of this case, the contact with the siblings who had no contact had no contact during the period of the judgment of the court of first instance, it is expected that he will give a job to the respondent, and considering all circumstances such as the fact that the respondent for the warrant of custody is in depth, it is unlikely that the respondent for the warrant of custody will commit larceny at once.
Article 5 of Social Protection Act
[Plaintiff-Appellant] Plaintiff 1, 1983 (Law No. 82627, Dec. 29, 1983 (Law No. 8277, Dec. 27, 1983) 82Gado401 (Law No. 716351, Sep. 27, 1983) (Law No. 72351, Sept. 25, 1985) 83Gado385, Sept. 27, 1983 (Law No. 72351, Sept. 25, 199)
Defendant
Defendant and Appellant for Custody
Daegu District Court of the first instance (85 Gohap744, 85 Dismissal55)
Of the judgment below, the part of protective custody case shall be reversed.
The prosecutor's request for protective custody is dismissed.
The appeal against the accused case shall be dismissed.
115 days out of the number of days of confinement before the judgment is rendered shall be included in the imprisonment with prison labor for the original instance.
The summary of the grounds for appeal by the defendant, the respondent for identification (hereinafter the defendant) and the defense counsel is as follows: first, although the defendant did not mislead the defendant as a stolen article because one of the boxes who suffered from the petroleum custom in question in this case is left alone on the street, the court below recognized the defendant as a larceny and convicted him; second, the court below erred in misunderstanding of facts; second, even if the defendant's act is recognized as larceny, it is a contingent crime that occurred in the whole process; second, the defendant had lived in good faith after the final judgment; second, the defendant has been living in depth; second, the punishment of imprisonment with prison labor for 1 and 6 months and the protective custody for 7 years, which the court below sentenced against the defendant, is unreasonable.
First, in full view of the evidence duly admitted by the court below after examining the grounds for appeal against the defendant's substitute case, the criminal facts of this case can be fully recognized by the court below, and there are no errors as pointed out in the process of fact-finding by the court below. Considering the motive of the crime of this case, means, age of the defendant, character and conduct, environment, criminal record relationship, circumstances such as criminal records and arguments after the crime, the amount of the sentence imposed by the court below against the defendant is inappropriate, and it cannot be deemed unfair. Thus, the above appeal against the defendant is without merit.
Therefore, according to Article 364(4) of the Criminal Procedure Act, the appeal by the accused against the accused case shall be dismissed, and 115 days out of the number of days of confinement before the pronouncement of the sentence shall be included in the imprisonment for the original instance pursuant to Article 57 of the Criminal Act.
The following grounds for appeal against protective custody cases are examined.
The risk of recidivism under Article 5 (2) of the Social Protection Act means a probable probability that a person subject to protection has committed a crime in the future. The judgment data should be strictly interpreted at the time of sentencing by comprehensively taking into account the age, relationship with the person subject to protection, the time of release from the crime, the period between the crime, the motive of the crime, the method of the crime, and the circumstances after the crime. However, if the court below collected various evidences which were lawfully examined and statements from this court by the witness, it is hard to find that the defendant had been sentenced to imprisonment with prison labor for more than 57 years, and it was hard to find that the defendant had been sentenced to imprisonment with prison labor for more than 4 times, and it was hard to find that the defendant had been sentenced to imprisonment with prison labor for more than 0 years, and it was hard to find that the defendant had been sentenced to imprisonment with prison labor for more than 1 year, but it was hard to find that the defendant had been sentenced to imprisonment with prison labor for more than 0 years than 1 year ago.
Therefore, since the appeal against the protective custody case of the defendant is well-grounded, the part of the judgment below's protective custody case is reversed pursuant to Article 42 of the Social Protection Act and Article 364 (6) of the Criminal Procedure Act, and the following decision is delivered through pleading.
The summary of the prosecutor's grounds for the application for protective custody of this case is the same as the statement of the grounds for the application for protective custody at the time of the original judgment. Thus, it is difficult to view the defendant as having the risk of recidivism as seen earlier, and thus, the prosecutor'
Therefore, the prosecutor's request for protective custody is dismissed in accordance with the latter part of Article 20 (1) of the Social Protection Act.
It is so decided as per Disposition for the above reasons.
Judges Song Jin-hun (Presiding Judge)