[상습사기등피고사건][고집1982(형사편),278]
The case where it is found that there is no risk of recidivism after habitually recognizing the habitualness.
Even if the respondent has committed the same kind of crime over several occasions, in light of the private sector that contributed to the development of social culture in the past and the overall circumstances such as the participation of the respondent after the crime, it does not seem that there is any risk of undermining the power floor or preventing another person from committing the crime of the same kind of crime.
Article 5 (2) 2 of the Social Protection Act
Defendant 1 and one other
Prosecutor and Defendant 1
Seoul Criminal District Court (Korean Supreme Court Decision 81Gohap864, 81 High Court Decision 8821, 81 High High Court Decision 208Da208 (Joint Court Decision)
Of the judgment of the court below, the part of the defendant 1 against the defendant 1 shall be reversed.
Defendant 1 shall be punished by imprisonment for three years.
One hundred and seventy-five days of detention days prior to the sentence of the original judgment shall be included in the above sentence.
The protective custody claim against Defendant 1 is dismissed.
The prosecutor's appeal against the defendant 2 is dismissed.
1. Determination of the accused case
The summary of the grounds for appeal by the defendant 1 and the defense counsel is as follows: first, (1) the crime of the defendant 1 at the time of the original adjudication is used only by lending the bill from the victim's only; (2) the crime of the defendant 2 at the time of the original adjudication is only one act; and (3) the crime of the defendant at the time of the original adjudication is not the intention to acquire it, but also the crime of the defendant at the time of the original adjudication, but there is an error of misunderstanding of facts that may affect the judgment; second, the determination of the sentence imposed by the court below is too unreasonable; and the summary of the grounds for appeal against the defendant 1 and 2 by the prosecutor is unjust.
First of all, in light of the records, the evidence duly adopted by the court below after examining the grounds for appeal of mistake of facts in light of the records, the grounds for appeal on this point shall not be accepted, since the facts charged by Defendant 1, which the court below decided, can be sufficiently recognized.
Examining the following circumstances in detail as to the grounds for appeal of unfair sentencing, such as the age, character and conduct of the Defendants, motive, means, method and method of the principal offense, the amount of damage therefrom and the circumstances thereafter, etc., the lower court acknowledged that the amount of the sentence imposed on Defendant 1 is too unjustifiable and deemed unfair, and that the amount of the sentence imposed on Defendant 2 is too inappropriate and unreasonable. Accordingly, the Prosecutor’s appeal against Defendant 1 is well-grounded in this point, and there is no reason for appeal against Defendant 2.
2. Determination on protective custody case
Despite the absence of any risk of recidivism, the court below erred by misapprehending the legal principles on the risk of recidivism and misunderstanding the facts about the risk of recidivism in applying Article 5(2)2 of the Social Protection Act, which affected the conclusion of the judgment.
Therefore, we examine whether there is a risk of recommitting the above custody applicant.
According to the records, the above applicants for crime (1) have graduated from the National University of 1954 and served as the principal of the National Defense Technology School (Class 2) from 1959 to 1961, and the defendant has no longer than 9 years old since 1961 as a candidate for the crime of this case, and the defendant has no longer than 17 years old since 1965 as a candidate for the crime of this case. In addition, the above applicants for the crime of this case had no longer than 10 years long-term police officers and 1960 long-term police officers and 19 years long-term police officers and 19 years long-term police officers and 19 years long-term police officers and 3 years long-term police officers and 19 years long-term police officers and 17 years long-term police officers and 19 years long-term police officers and 19 years long-term police officers and 17 years long-term police officers and employees of Seoul High Court.
Therefore, the court below's other opinion that there is a risk of re-offending by applying Article 5 (2) 2 of the Social Protection Act to the defendant subject to protective custody is an error of law that misleads the legal principles and facts about the risk of re-offending. In this regard, the appeal by the defendant subject to protective custody is justified.
3. Therefore, of the judgment below, the prosecutor's appeal against Defendant 2 is without merit, and thus, the prosecutor's appeal is dismissed pursuant to Article 364 (4) of the Criminal Procedure Act. Since the prosecutor's appeal against Defendant 1's prosecuted case and the defendant 1's appeal against Defendant 1 as to Defendant 1's request for custody is with merit, the part of the judgment below as to Defendant 1 among the judgment below's appeal against the defendant and the defendant 1 as to Defendant 1 as well as the case for custody is reversed, and it is decided again by the
The criminal facts and the summary of the evidence against the defendant recognized as a member of the party are as stated in the corresponding column of the judgment below, and all of them are cited in accordance with Article 369 of the Criminal Procedure Act, since the criminal facts of the first head of the reason and the facts of the custody cause are as follows: "the defendant 1 has the risk of re-offending" and the last part of the criminal facts stating that "the defendant 1 has the risk of re-offending" and the summary of the evidence are as follows.
In addition, each so-called "defendant" of the defendant's judgment falls under Articles 351, 347 (1), and 30 of the Criminal Act, and the defendant is punished by imprisonment for three years within the scope of the term of punishment, which is subject to the aggravated punishment pursuant to Article 351 of the same Act, and one hundred and seventy-five days of detention days prior to the pronouncement of the judgment of the court below, shall be included in the penalty under Article 57 of the same Act.
A prosecutor requests a protective custody in accordance with Article 5(2)2 of the Social Protection Act for a person who is recognized as habitually committing the crime of the above recognition and is likely to commit a crime corresponding to imprisonment with prison labor for not less than five years. However, as seen in the grounds for reversal of the protective custody case as mentioned above, the requester for protective custody can be deemed to have the risk of recidivism. Thus, the prosecutor's request for protective custody against the requester for protective custody shall be dismissed pursuant to Article 20(1) of the same Act.
It is so decided as per Disposition.
Judges Lee Jong-sung (Presiding Judge)