The case affirming the claim for protective custody for the reason that the criminal facts of the established defendant's case are not subject to protective custody under the Social Protection Act (amended by Act No. 4089 of March 25, 1989) applicable to protective custody cases where the criminal facts of the confirmed defendant

Article 3(3) and (1) of the Punishment of Violences, etc. Act, Article 260(1), Article 283(1) and Article 366 of the Criminal Act, a public prosecution was instituted in violation of Article 3(2) and Article 5(1)1 of the Social Protection Act prior to the amendment (Act No. 4089, Mar. 25, 1989). In the first instance court, although the above facts charged were recognized, the court allowed the above facts charged to be changed before the remand, and found the defendant guilty by citing the first instance court's applicable provisions for the crime. Thus, the court below's dismissal of the violation of Article 2(2) and (1), Article 260(1) and Article 366 of the Criminal Act, Article 28 of the Punishment of Violences, etc. Act, and Article 283 of the same Act cannot be deemed to have been reversed and remanded to the court prior to the first instance court's determination that the above facts charged were not subject to correction.

Article 20 of the Social Protection Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Han-do, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

Applicant for Custody

A co-inspector;

Attorney Lee Jung-soo

Supreme Court Decision 89Do404, 89Do42 Decided June 27, 1989

Gwangju High Court Decision 89No40 delivered on November 23, 1989

The appeal is dismissed.

We examine the grounds of appeal.

In light of the records of the case, the requester for protective custody in this case was indicted for violating Article 3(3) and (1), Article 2, Article 260(1), Article 283(1), and Article 366 of the Punishment of Violences, etc. Act with respect to the original accused case, and also requested protective custody pursuant to Article 5(1)1 of the Social Protection Act prior to the amendment (Act No. 4089, Mar. 25, 1989). While the above facts charged were recognized at the first instance court but the applicable provisions of the case were not returned, the requester for protective custody in this case was also dismissed from the judgment of the court of first instance, and the court of first instance recognized the application of Article 3(2), (1), and Article 260(1), Article 283(1), and Article 366 of the Criminal Act with respect to the above facts constituting an offense subject to protective custody, etc. as stated in the above Article 9(2)1 of the Criminal Act.

In addition, even if the court below accepted the criminal facts of the first instance prior to remand and applied Article 2 (2) or 3 (2) of the Punishment of Violences, etc. Act to which only the applicable provisions of the Act were applied, the criminal facts acknowledged by the defendant are the criminal facts of the violation of Article 2 (2) or 3 (2) of the same Act, and as a result, the court below's finding the criminal facts of the first instance prior to remand as they were not deleted, it cannot be said that the criminal facts of the first instance did not constitute the crime of the violation of Article 3 (3) or 2 (1) of the same Act since the facts of the crime were not deleted. It cannot be said that the name of the crime to which the criminal facts of the court below applied the criminal facts of the first instance prior to remand or the applicable provisions

Therefore, after remanding the case, the court below's dismissal of the request for protective custody on the ground that the application of the applicable provisions for protective custody in this case is not a crime subject to protective custody under the amended Social Protection Act, and that the defendant's violation of Article 3 (2) of the Punishment of Violences, etc. Act (the same shall apply to the violation of Article 2 (2)) is just and there is no ground to criticize the judgment below from the opposite position.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ju (Presiding Justice)