[1] The meaning of “the risk of recommitting a homicide” under Article 5(3) of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders, and the standard and time for determining the risk of recommitting a crime (=the time of judgment)

[2] The method of determining the danger of a crime, which is the requirement for an attachment order, where a medical treatment and custody and an attachment order are issued together

[3] In a case where a prosecutor filed a request for an attachment order on the ground that there is a risk of recommitting a murder crime on the ground that the Defendant was guilty of murdering, etc., and the first instance court issued an attachment order and the medical treatment and custody request was added at the lower court, the case holding that the lower court erred by misapprehending the legal doctrine, etc., which received the request for an attachment order, without sufficiently examining whether “the risk of recommitting a murder” is recognized as an element for the attachment order, separate from the “

[1] “The risk of recommitting a homicide” under Article 5(3) of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders refers to a lack of possibility of recommitting a homicide and a considerable probability of undermining legal peace by committing a homicide again in the future. The risk of recommitting a murder crime shall be objectively determined by comprehensively assessing various circumstances, including the occupation and environment of the person who requested the attachment order, the conduct prior to the relevant crime, the motive, means, circumstances after the crime, and the situation after the crime, etc., and such determination shall be based on the time of the judgment, since it is a assumptive judgment for the future.

[2] Where a medical treatment and custody and an attachment order are issued together, an order to attach an electronic device is executed on the date the execution of the medical treatment and custody is completed or provisionally terminated pursuant to Article 13(1) of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders. The purpose of the medical treatment and custody is to prevent recidivism and promote rehabilitation by providing adequate protection and medical treatment to those who committed a crime in the state of mental or physical disorder and are deemed to have a risk of recidivism and require special education, improvement and treatment. Considering the circumstances that are terminated when the need for the medical treatment and custody under the Medical Treatment and Custody Act is no longer necessary to receive the medical treatment and custody within the scope of the confinement period under the Medical Treatment and Custody Act, separate from the risk of recidivism as the requirements for the medical treatment and custody, whether the risk of recidivism is recognized as the requirements for the attachment order, regardless of the progress of the medical treatment and custody through the medical treatment and custody, and where special circumstances exist, such as the type, degree and possibility of treatment of the mental or physical disorder causing the medical treatment and custody, place of treatment and surrounding environment should not be readily concluded.

[3] The case holding that the court below erred in the misapprehension of legal principles or incomplete deliberation on the risk of committing a crime, which is an element for a request to attach an attachment order, in light of all circumstances, including the fact that the defendant's crime appears to be due to a euthanasia and euthanasia, in a case where the first instance court issued an attachment order and the subsequent application for a medical treatment and custody was added on the grounds that a prosecutor indicted the defendant about murdering several persons by putting in a reading room while attempting to commit a suicide due to euthanasia in the process of attempting to commit a suicide, the court below should have determined whether to accept the request after examining whether the person subject to the request to attach an attachment order, regardless of the progress of medical treatment and custody through the medical treatment and custody, regardless of the risk of repeating the crime, as the requirement for a request to attach an attachment order, by misapprehending legal principles or incomplete deliberation on the risk of committing a crime again, which is an element for a request to attach an attachment order.

[1] Article 5(3) of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders / [2] Articles 5 and 13(1) of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders / [3] Articles 164(1), 250(1), and 254 of the Criminal Act; Articles 5(3) and 9(1)1 of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders

[1] Supreme Court Decision 2004Do7410, 2010Do444 Decided December 9, 2010 (Gong2011Sang, 172) Supreme Court Decision 2011Do82 Decided September 29, 2012, Supreme Court Decision 2011Do82 Decided June 24, 2004

Defendant

Defendant and Applicant for medical treatment and custody and respondent for attachment order

Law Firm KEL, Attorneys Lee Jae-hwan et al.

Seoul High Court Decision 2011No2952, 2011No16, 2011No397 decided January 19, 2012

The part of the judgment below regarding the claim for attachment order is reversed, and that part of the case is remanded to the Seoul High Court. The appeal against the defendant's case and medical treatment and custody claim

The grounds of appeal are examined.

1. As to the defendant's case and medical treatment and custody application claim

Defendant and requester for medical treatment and custody filed an appeal against the part of the lower judgment regarding Defendant case and medical treatment and custody claim, but the appellate brief did not state the grounds for appeal and did not state the grounds for appeal as to the above part.

2. As to the case of the request for attachment order

A. “Dangerous to repeating a homicide” under Article 5(3) of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders refers to a highly probable probability that a person subject to an application for an attachment order may injure legal peace by committing a murder again in the future. Whether the risk of repeating a homicide is objectively determined by comprehensively assessing various circumstances, such as the occupation and environment of the person subject to the application for an attachment order, the conduct prior to the relevant crime, the motive, means, circumstances after the crime, and the outline of the crime. Such determination is a assumptive determination of the future, and should be based on the time of the judgment (see Supreme Court Decision 2010Do7410, 2010Do444, Dec. 9, 2010, etc.).

Meanwhile, in cases where a medical treatment and custody and an attachment order are issued together, an order to attach an electronic device is executed on the date the execution of the medical treatment and custody is terminated or terminated pursuant to Article 13(1) of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders. The purpose of the medical treatment and custody is to prevent recidivism and promote rehabilitation by providing appropriate protection and medical treatment to those who have committed a crime in the state of mental or physical disorder and are deemed to have a special risk of recidivism and require special education, improvement and medical treatment. Considering the circumstances that are terminated when the medical treatment and custody and an attachment order are not necessary within the period of confinement stipulated under the Medical Treatment and Custody Act, the court should, separately from the risk of recidivism as the requirements for the medical treatment and custody, examine whether the risk of recidivism is recognized as the requirements for the attachment order, notwithstanding the progress of the medical treatment and custody through the medical treatment and custody, and, if special circumstances exist, the risk of recidivism after the completion of the medical treatment and custody order should not be readily concluded.

B. The court below affirmed the judgment of the first instance court that ordered the attachment of an electronic tracking device for 10 years against the respondent, considering the following factors: ① the person subject to the request for the attachment order was using the scene of the crime in advance with another person, ② the person subject to the request for the attachment order was trying to kill a number of victims using the reading room by preparing the criminal tools, making it difficult for many people to commit the crime; ② the person subject to the request for the attachment order significantly drops the judgment of the court; ③ the person subject to the request for the attachment order committed the crime of this case against the unspecified number of victims; ③ the person subject to the request for the attachment order, in light of the following: (a) the person subject to the request for the attachment order, stating that “the person subject to the request for the attachment order has a substantial degree of judgment in the state of depression with severe depression; and (b) the person subject to the request for it was able to engage in extreme behavior due to sacrificing, and it is difficult to eliminate the possibility of recidivism.

C. However, the most of the reasons for the lower court’s argument as the grounds for permitting attachment orders are as follows: (a) the lower court’s necessity for medical treatment and the reasons for the risk of recidivism as the grounds for the application for medical treatment and custody; (b) the fact that the Defendant has a big fall in practical judgment due to severe depression, psychological anxiety, etc.; (c) the fact that the Defendant is likely to engage in extreme behavior due to extreme self-defluence and extinction; and (d) the Defendant’s age, character and conduct overlap.

As examined below, in light of the nature, living attitude, criminal records, etc. of the person against whom the attachment order was requested, the instant crime appears to have been caused by friendly evidence rather than by the inherent violence or malicious nature inherent in the person against whom the attachment order was requested, and the lower court also ordered medical treatment and custody by taking into account such facts. The Defendant’s account of friendly evidence treatment at the lower court’s court stated that the risk of recidivism is not high when the treatment of friendly evidence is performed, and considering the time when the attachment order was executed, the purpose and function of the medical treatment and custody, and the execution method thereof, etc., the risk of recidivism can be expected to be significantly decreased since friendly evidence, which caused the instant case after the completion of medical treatment and custody.

D. And according to the records of this case, the following circumstances are revealed.

(1) A person subject to a request to attach an attachment order is under the age of 19 years at the time the lower judgment was sentenced, and is the age of her age to which it is legally unable to execute the attachment order, and there is no criminal record prior to the instant case.

(2) A person subject to a request for attachment order, when an elementary school was originally divided into three parts, is well friendly with her natives and actively engaged in school life. However, from the time of the sixth grade of an elementary school, the characteristics of the elementary school became good and good from the time of the middle school, and the middle school was left from the first grade of a high school, and it was committed in the process of attempting to commit suicide by her at least two years after her retirement at home, and her death was committed in the process of attempting to commit suicide.

(3) While a person subject to a request for an attachment order had attempted suicide during the third year of a middle school, he/she only attempted to commit suicide by taking the mixed title from his/her house, and did not commit suicide by causing harm to others.

(4) The degree of personal damage and physical damage caused by the instant crime is relatively weak.

(5) If the attachment order is executed by a medical treatment and custody for a maximum of four years, a minimum of three years, and a medical treatment and custody for a person who is the age of majority, compared to the outcome of the instant crime, the disadvantage to the person who requested the attachment order would be too harsh compared to the outcome of the instant crime. According to the testimony of the psychiatrist and a medical specialist who treated the person who requested the attachment order, it cannot be ruled out that the attachment of the electronic tracking device would deteriorate the depression of the person who requested the attachment order, wherein the location tracking device is difficult to face.

(6) A person subject to a request for an attachment order, as an external baby between the father and the father and the mother who are the principal father of the company, was living together with their parents at a normal home, and does not seem to have changed even after the execution of the instant sentence. After the instant case, many surrounding persons are interested in the person subject to the request for the attachment order, such as submitting a written application to the effect that the parents, including the parents, agree with the victims, and that various relatives, including the parents, will make the person subject to the request for the attachment order as a normal social person.

(7) The respondent for an attachment order stated that he/she caused damage to a person unrelated to the investigation process, and that he/she would have caused such damage to the victim, and that the court also has expressed a majority of his/her anti-discrimination to the effect that he/she wishes to return the crime to the parents and the victims, cure the disease, and live in a normal person, etc., as well.

E. If the above circumstances are the same, even if the court below takes into account the grounds on which the attachment order was permitted, it is difficult to readily conclude that the applicant for the attachment order has a considerable probability of committing murdering again from the abstract possibility of recidivism, which makes it difficult to exclude the possibility of again committing a crime again, even after completing a long-term medical treatment under a medical treatment and custody, in view of the grounds on which the application for the attachment order was made.

F. Therefore, in this case where the first instance court issued an attachment order without a request for a medical treatment and custody, and the first instance court added a request for a medical treatment and custody in addition to the risk of recidivism as a requirement for a medical treatment and custody, the lower court should, apart from the risk of recidivism as a requirement for a medical treatment and custody, examine whether the risk of recommitting a crime as a requirement for an attachment order is recognized despite the progress of medical treatment and custody, and determine whether to accept a request for an attachment order carefully after securing objective data necessary and comprehensively assessing various circumstances. However, the lower court maintained the first instance judgment, which is the receipt of the request for an attachment order, based only on the above reasons. In so doing, the lower court erred by misapprehending the legal doctrine on “risk of recommitting a homicide” as a requirement for a request for an attachment order, or failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The allegation in

3. Conclusion

Therefore, the part of the judgment below regarding the claim for attachment order among the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination. The appeal against the defendant's case and medical treatment and custody claim is dismissed. It is so decided as per Disposition by the assent of all participating Justices

Justices Yang Chang-soo (Presiding Justice)