Ministry of Health and Welfare to change a protective custody claim to a protective custody claim;

In a case where a protective custody claim is filed at the same time when a prosecution is filed, the court's trial subject to the protective custody is found to have been a mentally disabled person at the time of committing a crime with the mental disorder of the defendant and the requester for the protective custody, whether a crime is committed, and the risk of recidivism, and the subject of the trial is all the requirements of the protective custody request. In a case where the request for protective custody is found to have been a mentally disabled person at the time of committing a crime, the change of the request for protective custody to the request for protective custody through the procedure for a change of the protective custody does not put any disadvantage, etc. to his/her defense right. When the requirements for protective custody and the protective custody conflict with the requirements of the protective custody, the legal principle that only the protective custody should be sentenced (Article 20 (4) of the Social Protection Act) is consistent with the protective custody when the protective custody and the protective custody are executed concurrently with the protective custody. In this case, the execution period of the

Article 42 of the Social Protection Act, Article 298 of the Criminal Procedure Act

Defendant and Appellant for Custody

Defendant and Appellant for Custody

Suwon District Court of the first instance (Law Firm 91, 116, 91 reduction8)

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for two years.

85 days of detention prior to the pronouncement of the judgment of the court below shall be included in the above sentence.

A person who requests custody shall be punished by medical treatment and custody.

1. The grounds for appeal shall be considered as follows;

A. Determination of the accused case

Upon examining ex officio the following: (a) the process leading up to the instant crime; (b) the method and method of committing the instant crime; (c) the Defendant’s behavior before and after the instant crime; and (d) the Defendant’s attitude in the courtroom, such as the circumstances after the instant crime; and (c) the preparation of the non-indicted as the non-indicted as the witness for the trial and the victim for the relief (hereinafter only referred to as the “Defendant”); and (d) the process leading up to the occurrence of the instant crime; and (c) the Defendant’s attitude in the courtroom can be recognized as having been in a state of lacking the ability to discern things or make decisions; (d) the instant crime committed by the non-indicted as the act of the non-indicted with a mental disability, which requires a mitigation of punishment pursuant to Article 10(2) of the Criminal Act; (c) however, the lower court erred by misapprehending the legal doctrine on mistake of facts or mental

B. Determination on custody application cases

ex officio, the prosecutor shall examine the applicable provisions of the protective custody claim of this case against the defendant for the first time in the trial, and the part of the judgment of the court below regarding the protective custody claim of this case shall not be maintained in this regard since the alteration of the application form for protective custody as stated in Article 8 (1) 1 of the Social Protection Act to the fact that the ground for protective custody claim of this case was changed to the application form for protective custody claim of this case (the reason why it is allowed to change the application form for protect

2. Therefore, the judgment of the court below regarding a prosecuted case shall be reversed in accordance with Article 364(2) and (6) of the Criminal Procedure Act, and Article 42 of the Social Protection Act and Article 364(2) and (6) of the Criminal Procedure Act shall be ruled again as follows.

In addition, "a person who was terminated" in the 8th sentence of the criminal facts and the grounds for the request for custody at the time of the original judgment (as a person who had been hospitalized in the Jeju National Mental Hospital on June 1986 due to a pre-control and re-control, and who lacks the ability to discern things or make decisions due to a lack of ability to discern things due to the addition of "a person who lacks the ability to discern things or make decisions due to the addition of "a person who lacks the ability to discern things due to the addition of the pre-control and de

Except for the case of the original trial, the part of the recognition on the risk of re-offending is to be changed to "It is recognized that there is a risk of re-offending in view of the military history and mental state of the defendant recognized by the written expert witness's written expert opinion, and the past behaviors, criminal records, character, family environment, etc. recognized by the above evidence", the same as

The defendant's act of judgment falls under Article 337 of the Criminal Act, since the defendant selected a limited term of punishment, and the defendant commits a crime of violation of the Punishment of Violences, etc. Act of the first head of the judgment, etc. in the judgment, it is subject to aggravation of repeated crimes within the limit of the proviso of Article 42 of the Criminal Act in accordance with Article 35 of the Criminal Act. The crime in the judgment is an act of a mentally disabled person. Since the crime is an act of a mentally disabled person, legal mitigation should be made in accordance with Article 10 (2) and Article 55 (1) 3 of the Criminal Act. Since Articles 53 and 55 (1) 3 of the Criminal Act can be considered in light of circumstances such as restoration of the damaged person, the defendant's mistake is recovered in depth after the crime is committed, the defendant shall be punished by imprisonment for a limited term of imprisonment within the scope of the term of punishment, and 85 days out of the number of detention days before the sentence is applied by Article 57 of the Criminal Act.

It is so decided as per Disposition.

[Attachment Omission]

Judges Lee Young-han (Presiding Judge)