Whether a protective custody can be dismissed for the reason that the risk of recidivism is not recognized in cases falling under the necessary protective custody requirement of Article 5 (1) of the Social Protection Act.

As long as the requirements for protective custody under Article 5(1) of the Social Protection Act are met, it is deemed that there exists a risk of re-offending in law, and thus, there is no need to separately prove the risk of re-offending, and on the ground that the risk of re-offending cannot be denied, the request for protective custody cannot be dismissed for the reason that the risk of re-offending cannot be denied. As long as the requirements for protective custody are lawfully satisfied, the court must take protect

Article 5 (1) of the Social Protection Act

Supreme Court Decision 82Do680 Delivered on February 22, 1983

An applicant for concurrent Office of the Defendant

Defendant and Appellant for Custody

Attorney above-at-Law

Seoul High Court Decision 87No762,87No75 delivered on June 24, 1987

The appeal is dismissed.

The number of detention days after an appeal shall be included in the calculation of the original sentence.

The grounds of appeal by the defendant and the respondent for defense and the state appointed defense counsel are also examined.

1. Examining the evidence in comparison with the records stated in the reasoning of the judgment of the court of first instance maintained by the court below, the facts constituting the crime under paragraph (4) can be acknowledged at the time of the judgment of the court of first instance, and there is no violation of the rules of evidence

2. In this case where one-year imprisonment was sentenced, the grounds for unfair sentencing do not constitute legitimate grounds for appeal.

3. It is identical to the theory that Article 5(1) of the Social Protection Act or Article 5(2) of the same Act or that a person who is in danger of re-offending is subject to a protective disposition without being subject to a case of paragraph (1). However, in the case of paragraph (1), since it is deemed that there is a risk of re-offending as long as the requirements are met, it is not necessary to prove that there is a risk of re-offending, and it is not allowed to deny the risk of re-offending on the ground that the risk of re-offending is not recognized (see Supreme Court Decision 82Do680, Feb. 22, 1983). Thus, as long as the requirements for the protective disposition are lawfully satisfied, the court must take the protective disposition necessary, and there is no room for recognizing discretion, and it is no violation of law by misapprehending the legal principles of the Social Protection Act.

4. All arguments are without merit. Accordingly, the appeal shall be dismissed, and part of the detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating judges.

Justices Kim Jong-sik (Presiding Justice)