[보호감호[특정범죄가중처벌등에관한법률위반(절도)]][공1991.10.1.(905),2381]
A. Whether it violates Article 13(1) of the Constitution to protect a person under protective custody pursuant to Article 5(1)1 of the former Social Protection Act (amended by Act No. 4089, Mar. 25, 1989) is subject to protective custody pursuant to Article 5(3)1 of the Constitutional Court Act (negative)
B. Whether a judgment of acquittal for a person subject to protective custody under the Social Protection Act prior to the amendment can be sentenced or exempted from the execution of protective custody (negative)
A. According to Article 5(1)1 of the former Social Protection Act (amended by Act No. 4089 of Mar. 25, 1989), a person against whom a judgment of being placed in a protective custody for 10 years pursuant to Article 5(1)1 of the same Act was finalized shall be deemed to claim protective custody pursuant to Article 47(3) of the Constitutional Court Act in a new trial procedure for the said final judgment, and the prosecutor’s claim for protective custody pursuant to Article 5 subparag. 1 and 2 of the same Act shall not be deemed to violate Article 13(1) of the Constitution.
B. Since a protective custody disposition under the Social Protection Act is not imposed, it is not subject to Article 326 subparag. 4 of the Criminal Procedure Act. In addition, in light of the provisions of Article 2(1) of the amended Social Protection Act, a judgment of acquittal or exemption from execution of protective custody cannot be imposed on a person subject to protective custody under the amended Social Protection Act for reasons of the repeal of the Act.
A. Article 13(1) of the Constitution of the Republic of Korea, Article 438(1) of the Criminal Procedure Act, Article 47(3) of the Constitutional Court Act, Article 5 of the Social Protection Act, Article 5(1) of the former Social Protection Act (amended by Act No. 4089, Mar. 25, 1989) (amended by the Constitutional Court Decision 88HunGa5,88,89HunGa44, Jul. 14, 1989)/B. Article 326 subparag. 4 of the Criminal Procedure Act, Article 2(1) of the Addenda to the Social Protection Act, Article 1(3) of the Criminal Act
A. Supreme Court Decision 90Do127 delivered on August 28, 1990 (Gong1990, 2059) (Gong1990, 2059) 91DoDo58 delivered on July 26, 1991 (Gong1991, 2280). Supreme Court Order 90Mo15 delivered on February 26, 1991 (Gong191, 1199)
Applicant for Custody
Applicant for Custody
Attorney Yoon Il-young
Seoul High Court Decision 91No52 delivered on May 2, 1991
The appeal is dismissed.
95 days out of the number of days of detention after appeal shall be included in the period of confinement in protective custody facilities.
1. Determination on the ground of appeal No. 1 by the requester for custody
According to the records, the applicant for protective custody was sentenced to two years of imprisonment for a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (thief) and the ten-year protective custody under Article 5(1)1 of the former Social Protection Act (amended by Act No. 4089 of Mar. 25, 1989). As the applicant for protective custody was decided on Aug. 23, 198 pursuant to Article 47(3) of the Constitutional Court Act, the first instance court decided the commencement of review of protective custody case and decided again pursuant to Article 47(3) of the same Act, and the first instance court changed the application for protective custody to request protective custody under subparagraphs 1 and 2 of Article 5 of the amended Social Protection Act, and the first instance court did not err in the misapprehension of the legal principles on protective custody under Article 5 subparag. 1 of the same Act, or in the abolition of Article 13(2)9 of the amended Social Protection Act.
In the end, all arguments are not acceptable.
2. Determination of the grounds of appeal No. 2 by the requester for the warranting detention and the grounds of appeal by the public defender
If the evidence of the first instance court affirmed by the court below is examined by comparing it with records, the court below's decision that recognized the risk of re-offending as a person eligible for protection does not constitute an error of law by misunderstanding the legal principles on the risk of re-offending or the Social Protection Act, such as the theory of lawsuit,
3. Therefore, the appeal by the requester for detention is dismissed, and part of the number of days of detention after the appeal is included in the period of confinement in the protective custody facility is delivered with the assent of all participating Justices.
Justices Yoon Jae-ho (Presiding Justice)