The meaning of the risk of recidivism under Article 5 of the Social Protection Act and its criteria.

The risk of re-offending under Article 5 of the Social Protection Act refers to a case where the requester for re-offending is highly probable to commit a crime again in light of his age, family relation, occupation, fact and frequency of the previous offense, the existence of the previous offense, the time interval with the previous offense, and the motive and method of the offense, etc. It is, in essence, bound to be based on the judge's subjective judgment. However, such judgment is not only appropriate to the spirit of the Social Protection Act but also should be reasonable and fair, so the risk of re-offending is not objectively visible, such as preparation or conspiracy under criminal law, and it is not unreasonable even if it is recognized without specific facts or actions.

Article 5 of Social Protection Act

[Plaintiff-Appellee] 108 decided August 8, 1989 (Gong1989, 1388)

Applicant for Custody

Applicant for Custody

Attorney Lee In-hee

Seoul High Court Decision 90No1214, 90No80 delivered on June 21, 1990

The appeal is dismissed.

Each ground of appeal

Since the judgment of the court below is just and acceptable to recognize the risk of recidivism as stipulated in Article 5 of the Social Protection Act, the theory of the petitioner's appeal seeking exemption from custody disposition cannot be accepted.

In addition, the risk of recidivism above refers to the case where there is a considerable probability that the applicant for preventive detention once again commits the crime in light of his age, family relation, occupation, criminal history, frequency of the previous offense, the existence of the previous offense definition, the time interval between the previous offense and the previous offense, and the motive and method of the offense, etc. In essence, it shall be based on the subjective judgment of the judge in charge of preventive custody case, but the judgment shall be reasonable and fair as well as appropriate, and therefore, it shall be deemed that the law guaranteeing the review through the higher judgment of the appeal review is corresponding to such request.

Therefore, we cannot accept the defense counsel's theory that the risk of re-offending as seen above is not only objectively visible, such as preparation or conspiracy under criminal law, and there is no specific fact or act, and that it is unreasonable to recognize it by the court below.

In light of the case, it is proper and proper that the court below recognized the risk of re-offending by the appellant.

Each issue is without merit, and this appeal is dismissed, and it is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Yong-ju (Presiding Justice)