(영문) 서울고등법원 2011.5.18.선고 2010누33391 판결

A. In the first place, on August 25, 2008, the defendant issued a ruling to revoke provisional release from custody against the plaintiff on August 25, 2008

If the cancellation is.

B. Preliminaryly, on August 25, 2008, the Defendant’s revocation of provisional custody against the Plaintiff on August 25, 2008

confirm that the invalidation is void.

2. Purport of appeal

The part of the judgment of the first instance is revoked. The plaintiff's conjunctive claim is dismissed.

Reasons

1. Scope of the judgment of this court;

On August 25, 2008, the plaintiff primarily sought revocation of the decision to revoke the withdrawal of protective custody against the plaintiff on August 25, 2008, and sought confirmation of invalidity of the decision to revoke the provisional release, the judgment of the court of first instance rejected the plaintiff's main claim and accepted the conjunctive claim. The plaintiff did not appeal against it, and only the defendant appealed against the defendant among the judgment of the court of first instance. The scope of the judgment of this court is limited to the conjunctive claim.

2. Details of the disposition;

A. On January 29, 1986, the Daegu High Court sentenced 10 years of imprisonment with prison labor and 7 years of protective custody due to a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Robbery). The above judgment was finalized on April 8, 1986 by the Supreme Court and became final and conclusive on April 8, 1986 (hereinafter “the first judgment”).

B. According to the judgment of the first instance of this case, the Plaintiff was released from a protective custody center on the 24th of the same month upon receiving a decision to grant provisional release from the Social Protection Commission on March 20, 200, when the Plaintiff was subject to a protective custody enforcement from April 13, 1995 after completing the enforcement of imprisonment with prison labor.

C. The Plaintiff committed a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Robbery) from October 19, 2002 to November 14, 2002 during the period of probation (from March 24, 2000 to March 23, 2003).

7. 11. The Seoul High Court was sentenced to 10 years of imprisonment, and the above judgment was finalized on September 23, 2003 by the Supreme Court as it was (hereinafter “the second judgment”).

D. On November 25, 2002, the Plaintiff was detained in the Seoul detention center for criminal facts in the judgment of the second instance, and was transferred to the Busan correctional institution on June 27, 2008. The head of the Busan correctional institution found that the Plaintiff committed a crime equivalent to imprisonment without prison labor or heavier punishment during the period of probation and notified the Defendant.

E. Accordingly, on August 25, 2008, by applying Article 30(1)1 of the former Social Protection Act (amended by Act No. 7656 of Aug. 4, 2005; hereinafter “former Act”), the Defendant revoked the decision to release the Plaintiff from provisional custody (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1-1 to 4, Eul evidence 1-1 to 17, the purport of the whole pleadings

3. Judgment on the conjunctive claim

A. Determination as to the defense prior to the merits

The defendant asserts that the lawsuit in this case is unlawful, since the plaintiff did not specifically specify the contents and scope of the complaint so that it can be clearly identified, and that the correction order was issued by the court but did not correct it.

In this case, the Plaintiff asserted that the disposition of this case was unlawful in the initial complaint and the amendment to the correction order, and did not specify the purport of the claim in detail. However, thereafter, the Plaintiff did not specify the purport of the claim.

17. On the first date for pleading of the first instance trial, the claim was specified as stated in the purport of the claim. Therefore, the Defendant’s above assertion is without merit.

B. Judgment on the merits

1) The parties’ assertion is the Plaintiff’s assertion

In addition to the expiration of the 7-year protective custody period under the instant judgment, the instant disposition was issued after the lapse of about 5 years from the date when the second judgment became final and conclusive. This goes beyond the time limit for the revocation of the provisional release, and the instant disposition is unlawful and its defect is significant and apparent.

B) Defendant’s assertion

In the former Act, etc., there is no provision regarding the period in which the enforcement agency should notify the Defendant of the recidivism of the protective custody, or the period in which the Defendant can cancel the protective custody. Article 27(1) of the former Act provides on the premise that the period of probation expires without any special problem, and it cannot be viewed as a provision restricting the cancellation of the protective custody provisional detention (hereinafter referred to as the "provisional cancellation"). The provisional cancellation for the recidivism is absolutely necessary to defend society from the crime, and in general, the provisional cancellation for the recidivism can be revoked after the criminal judgment for the recidivism becomes final and conclusive. In light of the above, if the person subject to protective custody commits a second offense within three years, it shall be deemed that the provisional cancellation can be revoked even after the expiration of the period of probation.

Even if it is impossible to revoke the provisional release after the expiration of the probation period, in the instant case, the instant disposition was taken only after the expiration of the probation period due to the Plaintiff’s resident registration number’s clerical error in the criminal trial process of the instant second judgment, and thus, such defect cannot be deemed as serious and apparent. 2) Relevant statutes and regulations.

As shown in the attached Form.

3) Determination.

According to the Social Protection Act (amended by Act No. 7656 of Aug. 4, 2005), the Social Protection Act (amended by Act No. 7656 of Aug. 4, 2005) is repealed on the same day. Article 2 of the Addenda of the Social Protection Act provides that the effect of a judgment on protective custody that had already been finalized before it is maintained, and the authority of the Social Protection Commission on the management and enforcement of protective custody shall be exercised by the Medical Treatment and Custody Deliberation Committee established under the Medical Treatment and Custody Act. Meanwhile, according to Articles 10(1)1 and (3), 25(1), and 27(1) of the former Social Protection Act (amended by Act No. 7656 of Aug. 4, 2005), the Social Protection Committee shall review and determine whether a protective custody subject is released from the protective custody subject, and if a protective custody subject is released from the protective custody subject, the probation period shall be exempted for the probationer upon the expiration of the period.

As above, while enacting the Social Protection Act that provides for protective custody, prior to the repeal of the Act, the Act requires the enforcement of protective custody for which the judgment has already become final and conclusive pursuant to the former Act. This is the probability of a protective custody judgment prior to the repeal of the Act, taking into account the social confusion prevention, etc. that may arise when releasing a large number of persons subject to protective custody at once

In full view of the above purport and the contents of the above provision, if probation is commenced after a provisional protective custody is issued and the probation period expires, the exemption from execution of the protective custody becomes effective, and there is no provision to interpret otherwise in the relevant statutes, including Article 30(1) of the former Act.

Furthermore, Article 30(1) of the former Act and other relevant statutes do not stipulate any provision regarding the period during which provisional release may be revoked, but such provision does not include any provision, pursuant to Article 27(1) of the former Act.

In light of the fact that it is difficult to present the concept of provisional release or re-execution in the event of exemption from the execution of protective custody, it is difficult to present the concept of provisional release or re-execution. Article 30(1) of the former Act, which is the basis provision for the disposition of this case, provides that the application of this provision to a person whose probation period has already expired, is unclear in itself as to whether this provision can be applied. Since protective custody disposition related to this provision is an expropriation that deprives of personal liberty like the execution of imprisonment in substance, it is necessary to strictly limit the scope of application of this provision. In light of the above, it is reasonable to deem that the provisional release under Article 30(1) of the former Act is permitted only before the expiration of the period of probation. On the other hand, once the execution of protective custody is already exempted from the expiration of the period of probation, it may be contrary to the purport of the former Act in order to guarantee fundamental rights of the people.

In full view of the above circumstances, even if the fact that an act falling under any of the subparagraphs of Article 30 (1) of the former Act was discovered during the probation period, the revocation of provisional release cannot be made on the grounds prescribed in each of the subparagraphs after the expiration of the probation period in light of such legal principles, etc.

It is evident that the status of a protective custody subject or a probationer is a person exempted from execution of protective custody on March 23, 2003 due to the expiration of the period of probation pursuant to Article 27(1) of the former Act. Nevertheless, the defendant revoked the provisional release order on August 25, 2008, which was following the repeal of the former Act. The disposition of this case was made against the plaintiff who did not have any protective custody to re-execution, and thus, is unlawful.

In addition, such defect is to revoke a provisional release that cannot be revoked in light of the content of the relevant statute, and it is objectively apparent in light of the purpose, meaning, function, and characteristics of the instant case as seen earlier, etc. of the Act and subordinate statutes, as well as the significant defect in violation of the relevant statute. This is also true in view of the fact that the expiration of the probation period, as alleged by the Defendant, is due to the fact that the Plaintiff’s resident registration number was erroneously stated in the investigation records and the judgment.

4. Conclusion

The judgment of the first instance is justifiable. The defendant's appeal is dismissed.