A. The nature of the security measure stipulated in the Social Safety Act and whether it is unconstitutional or not

B. Changes in facts on which the binding force of the judgment of remand is based and the binding force of the judgment of remand

A. The essence of a security measure under the Social Security Act is different from that of a punishment in that it is an administrative action as a preventive measure that maintains national safety and social well-being by preventing the risk of recommitting a specific crime committed by a person subject to a disposition in the future, rather than a sanction by asking for the responsibility for an act already committed by the person subject to a disposition, and at the same time, aims to educate the person subject to a disposition to return to society by educating him/her and improving his/her welfare. As such, security measure under the Social Security Act is not contrary to the provisions of the Constitution that stipulate that the right to a trial guaranteed by the Constitution, the principle of res judicata, and the fundamental contents of

B. The binding force of the judgment of the court of final appeal on the reversal and return of the judgment of the court of final appeal is only a passive point that the judgment of the court below on the grounds of reversal is not justifiable, and thus, if there is a change in the factual basis of the judgment of remand by new evidence or by combining the new evidence before and after remand and the new evidence presented after remand, the binding force of the judgment of remand cannot be said to fall short of the binding force of the judgment of remand, and even if the court below or the court of final appeal made a conclusion different from the judgment of remand according to the factual basis changed after remand, it cannot be said to go against Article 7-2 of the Court Organization Act on the binding force

Article 1 of the Social Safety Act, Articles 12, 18, 26(1), and 35 of the Constitution, Articles 391, 397 of the Criminal Procedure Act, Article 7-2 of the Court Organization Act

B. Supreme Court Decision 82Do2672 delivered on February 8, 1983, Supreme Court Decision 83Do2613 delivered on December 13, 1983

[Judgment of the court below]

The Minister of Justice

Seoul High Court Decision 86Gu151 delivered on December 15, 1986

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. As to ground of appeal No. 1

The security measure stipulated in the Social Safety Act is not a sanction to compensate for an act already executed by a person subject to the disposition, but a prior prevention of the risk of recommitting a specific crime prescribed in the Act in the future, and its essence differs from punishment in that it is an administrative action as a preventive measure to educate the person subject to the disposition and to return to society by improving education, and its essence is different from punishment in that it is an administrative action to prevent the person subject to the disposition from returning to the society. Therefore, the security measure under the Social Security Act cannot be deemed to violate the provisions of the Constitution, such as the right to a trial guaranteed by the Constitution, the principle of prohibition against double Jeopardy, or the provision on freedom of conscience, and other provisions that stipulate fundamental human rights protection. Accordingly, the decision of the court below to the same purport is justifiable, and there

2. As to the grounds of appeal Nos. 2 and 3

As alleged in the grounds of reversal of the judgment of the court of final appeal, the court of final appeal is bound by the original judgment which received the case before remand, and the appellate court may not take any other opinion by binding it. However, such binding force takes place only in the passive aspect that the judgment of the court below, which became the ground of reversal, is not justified, since new evidence or new evidence presented during the review process after remand, and new evidence presented after remand, are combined, and there is a change in the factual basis of the judgment of remand, then the binding force of the judgment of remand is not limited to this, and even if the court below or the court of final appeal has paid a different conclusion as a result of a change in the factual basis after remand, it cannot be said that the binding force of the judgment of remand does not conflict with Article 7-2 of the Court Organization Act concerning the binding force of the judgment of remand even if the court below or the court of final appeal after

According to the records, the first judgment of the court below, which was cited by the first instance court prior to the remand, does not constitute a crime of remanding the case. The second judgment of the court below did not err by misapprehending the legal principles regarding the first judgment of the court below because the plaintiff was sentenced to imprisonment with prison labor for a period of five years for a crime of meeting with members of anti-government organizations and acting as a counter-espionage, and even after being sentenced to security reduction for two years, it cannot be deemed that there is no clear danger of re-committing the case. It cannot be seen that the plaintiff's act of socialism or anti-governmentism at any time without permission of the plaintiff like the first judgment of the court below. Thus, the second judgment of the court below did not err by misapprehending the legal principles as to the second judgment of remanding the case without any evidence or by misapprehending the legal principles as to the second judgment of remanding the case, and it cannot be seen that the second judgment of the court below which did not have any obvious danger of returning the case after the second judgment of remanding the case, and it cannot be seen that the second judgment of remand the first judgment of the court below did not yet have any conviction or conviction.

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yellow-ray (Presiding Justice)