[2] Whether a crime of violation of Article 3 (2) of the Punishment of Violences, etc. Act constitutes "a crime of the same or similar attached Table" under Article 5 (1) of the Social Protection Act (negative)

[2] The crime that was found guilty of the requester for the arrest and detention is a violation of Article 3(2) of the Punishment of Violences, etc. Act, and this does not constitute a crime under Article 5 subparag. 1 [Attachment] of the Social Protection Act, and ultimately, it does not meet the requirements for protective custody under Article 5 subparag. 1 of the Social Protection Act.

According to the indictment of this case and the statement of the written request for custody, the facts charged against the requester for custody and the reasons for the request for custody are habitually committing the crime of intimidation, property damage, and the risk of recidivism. According to the reasoning of the judgment below, the court below dismissed the appeal by the requester for custody, on the ground that the facts charged are acknowledged, but it cannot be seen that the facts charged are habitual, and thus, it does not constitute Article 3 (3) of the Punishment of Violences, etc. Act. The court below acquitted the defendant on the facts charged, on the ground that Article 3 (2) of the Punishment of Violences, etc. Act is not applicable. The court below found the risk of recidivism against the protective custody case in light of the past behavior, criminal record, characteristics, family environment, etc. of the requester for custody, and dismissed the appeal by the requester for custody by applying Article 5 (1) of the Social Protection Act.

However, Article 5 subparagraph 1 of the Social Protection Act provides that a person who has been sentenced to imprisonment without prison labor or a heavier punishment for the same or a similar crime at least two years in total shall be sentenced to protective custody when he/she has committed a crime of the same or similar kind of crime again after having been sentenced to the execution of all or part of the final sentence or exemption from the punishment, and is in violation of the Punishment of Violences, etc. Act [Attachment Table] subparagraph 2 provides that a crime of violation of Article 2 (1), 3 (3), or 6 (limited to an attempted crime under Articles 2 (1) and 3 (3)] shall be punished. Thus, even if the criminal facts of the same or a similar crime constitute a crime of the same or similar kind, such criminal facts cannot satisfy the requirements of protective custody, and a crime of the same or similar crime of the same kind recognized to be guilty shall be deemed to be habitually committed under Article 2 (1) of the Punishment of Violences, etc. Act, or a crime of the same or a crime of the same Article shall be deemed to be committed under Article 96 (396) of the Criminal Act.

However, despite the fact that the prosecutor and the respondent for protective custody were found guilty of the defendant for protective custody, and the criminal facts that became final and conclusive due to the failure of the prosecutor and the respondent for protective custody to file an appeal are a violation of Article 3(2) of the Punishment of Violences, etc. Act, and this does not constitute a crime stipulated in Article 5 subparag. 1 of the Social Protection Act, and thus, the court below's acceptance of protective custody application does not constitute a crime stipulated in Article 5 subparag. 1 of the Social Protection Act. Thus, the court below erred in the misapprehension

Therefore, the part of the judgment below regarding protective custody case shall be reversed, and this part of the case shall be remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Jin-hun (Presiding Justice)