[특정범죄가중처벌등에관한법률위반,절도,보호감호][공1990.5.15.(872),1012]
The case holding that there is a risk of recidivism to a person who committed a retail crime during the period of release from a protective custody
From August 1965 to March 1982, 1982, the Defendant was released from provisional custody on October 2, 1987, 1987, among the protective custody due to the last dive custody between five times before and after the end of the crime, and the crime of this case was committed by cutting off the wall containing 24,000 won in cash from the back money of the victim in the city bus at around 18:50 on March 27, 1989, during the period of provisional release, and the above previous crimes committed the crime of this case, which committed retail in the bus, and all of the above previous crimes were committed in the bus as in this case. Despite the arrest at the retail place, it is difficult to conclude that the Defendant had no sufficient motive for committing the crime of this case to keep the Defendant out of the floor of the bus and to keep the Defendant out of the prison life for the last five months after the release. In light of the characteristics of the crime and the circumstances after the crime, it is difficult to conclude that the Defendant was living in the factory life.
Article 5 of Social Protection Act
Defendant and Appellant for Custody
Prosecutor, Defendant and Appellant for Custody
Attorney Lee E-hee
Seoul High Court Decision 89No2185, 89No198 Decided November 28, 1989
The protective custody part of the judgment of the court below is reversed, and that part of the case is remanded to Seoul High Court.
The appeal against the accused case shall be dismissed.
One hundred days of detention after an appeal shall be included in the imprisonment.
1. As to the Defendant and his defense counsel’s grounds of appeal
The court below's finding the criminal facts against the defendant based on the adoption of the first instance court and the evidence investigated by the court below is just and there is no violation of the rules of evidence, such as the theory of lawsuit, etc.
2. As to the Prosecutor’s Grounds of Appeal:
According to the court below's reasoning that there was no risk of recidivism with regard to the protective custody disposition of the requester for the crime of this case, the court below reversed the request for the crime of this case, and rejected the request for the crime of this case. The requester for the crime of this case was subject to protective custody on October 2, 1984, and maintained a disturbing family life while living together with the non-indicted 2 from around May 1988, and the non-indicted 60,000 won was paid a monthly salary for the non-indicted 1 and 5 months after the date of the crime of this case. The court below acknowledged that the defendant for the crime of this case was not subject to protective custody for the reason that there was no other evidence to view that there was no possibility of recidivism. However, considering the circumstances that the defendant for the crime of this case was not subject to protective custody before and after the date of the crime of this case, it is hard to conclude that the defendant for the crime of this case was under protective custody for the victim's remaining remaining after the date of this case's release.
As such, it is difficult to accept the judgment of the court below on the risk of re-offending by the requester for re-offending, and it is difficult to maintain the conclusion of the court below without any further thorough deliberation and determination on this point. The arguments are well-grounded.
Therefore, the part of the judgment of the court below regarding protective custody shall be reversed, and that part of the case shall be remanded to the court below. The appeal concerning the accused case shall be dismissed, and part of the detention days after the appeal shall be included in the term of punishment.
Justices Yoon Young-young (Presiding Justice)