[폭력행위등처벌에관한법률위반·보호감호][공1983.12.15.(718),1790]
Whether discretionary mitigation can be made in determining the period of protective custody
Since a protective custody disposition under the Social Protection Act is not a punishment, the court shall not take a discretionary measure in accordance with Article 53 of the Criminal Act on discretionary mitigation of punishment.
Articles 5 and 20 of the Social Protection Act, Article 53 of the Criminal Act
Supreme Court Decision 82Do1280, 82Ga250 Decided July 13, 1982, 82Do2814, 83Do609 Decided February 23, 1983, 83Do181, 83Do43 Decided March 8, 1983, 83Do395, 83Do82 Decided April 12, 1983
An applicant for concurrent Office of the Defendant
An applicant for concurrent Office of the Defendant
Attorney Yoon Jin-han
Gwangju High Court Decision 83No199, 83No29 decided July 21, 1983
The appeal is dismissed.
The forty days during the period of detention prior to the pronouncement of judgment shall be included in the period of protective custody.
1. As to the grounds of appeal by the Defendant and the requester for the custody
In light of the records, it is clear that the witness pointed out the arguments made a statement favorable to the defendant, such as the theory of lawsuit in the court of law, but there is no reason to find out that there is any violation of the rules of evidence or any error of incomplete deliberation in the process of the preparation of evidence and the fact-finding in the first trial against the defendant by evidence of the court of first instance maintained by the court below.
After all, we cannot accept the issue merely because it interferes with the preparation of evidence and fact-finding which belongs to the full power of the fact-finding court.
2. As to the grounds of appeal by a state appointed defense counsel:
Since a protective custody disposition under the Social Protection Act is not a punishment, the court shall not take measures to reduce the period of punishment in accordance with Article 53 of the Criminal Act on discretionary mitigation of punishment. This paper argues that the protective custody period under the Social Protection Act is a discretionary mitigation under Article 53 of the Criminal Act, on the premise that the protective custody period can be mitigated pursuant to Article 53 of the Criminal Act, the court below and the first instance court's judgment, which are the requester for protective custody for 10 years
3. Therefore, all of the arguments are groundless, and the appeal is dismissed, and part of the number of detention days before the judgment is included in the protective custody period. It is so decided as per Disposition by the assent of all participating judges.
Justices Yoon Il-young (Presiding Justice)