The meaning of "a person who has been punished for at least five years" under Article 5 (1) 1 of the Social Protection Act;

Article 5 (1) 1 of the Social Protection Act provides that "a person whose total term of punishment is not less than five years" means a person whose total term of punishment is not less than five years, and a special amnesty does not lose the validity of a sentence unless a separate measure is taken under the proviso of Article 5 (1) 1 of the Amnesty Act, and thus, if the total term of imprisonment with prison labor is not less than five years, it shall be applicable even if a person who received benefit from a special amnesty during that period and actually received benefit from a special amnesty and actually returned for less than five years.

Article 5 of the Social Protection Act, Article 5 of the Amnesty Act

Defendant

Defendant and Appellant for Custody

Incheon District Court of the first instance (86 Gohap123, 86Ga4)

The appeal by the defendant and the respondent for custody is dismissed.

110 days out of the number of days of confinement before the judgment is rendered shall be included in the principal sentence of the judgment below against the accused.

In light of the circumstances such as the fact that the defendant and the respondent for protection (hereinafter referred to as the "defendants") and his defense counsel's grounds for appeal are divided into errors after committing the crime, and the situation where the wife and his children should be supported by the old and his children, the punishment of 1 year and 6 months and the protective custody disposition of 10 years which the court below sentenced against the defendant is too unreasonable.

However, according to records, the defendant's motive, means, result, age, personality and conduct, relationship of criminal records, relationship with victim, circumstances after committing the crime of this case, etc., even if considering the circumstances asserted by his defense counsel, the sentence imposed by the court below is inappropriate, and it is not deemed unfair. Since an appeal for the reason that the ten-year protective custody requirement of this case is too excessive, it is not permitted under the Social Protection Act. Thus, the grounds for appeal by the defendant and defense counsel cannot be accepted (the defendant's 8-year punishment of imprisonment with prison labor declared on August 28, 1980 is not less than 5 years since the defendant's actual prison term is special amnesty on March 3, 1981, and the defendant's actual prison term is less than 5 years, and the defendant's total period of punishment is more than 1-year imprisonment with prison labor is less than 5 years, and thus, the court below's decision that the defendant's total period of punishment is more than 1-year protective custody.

Therefore, the judgment of the court below is just, and the defendant's appeal is without merit. Accordingly, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act and Article 42 of the Social Protection Act, and it shall be applied Article 57 of the Criminal Act to include 110 days out of the number of days of confinement before the sentencing in the original sentence against the defendant.

It is so decided as per Disposition for the above reasons.

Judge Han-dae (Presiding Judge)