Defendant

Defendant and Appellant for Custody

The number of luminous minerals

Attorney Su-soo (Korean)

Seoul Southern District Court Decision 2009 Inventory 10 decided June 24, 2010

Of the judgment below, the part of protective custody case shall be reversed.

The claim for protective custody of this case is dismissed.

The defendant's appeal as to the guilty portion of the defendant's case is dismissed.

1. Part of the defendant's case

A. Summary of grounds for appeal

The punishment sentenced by the court below (six years of imprisonment) is too unreasonable.

B. Determination

Defendant and Defendant Appellant (hereinafter “Defendant”) were sentenced to imprisonment with prison labor on April 15, 198 and October 12, 1989; three years and six months on May 31, 199; and two years and six months on October 2, 1995; and on June 5, 1998, four years of imprisonment with prison labor and four years of protective custody due to habitual fraud, etc. and the execution of imprisonment with prison labor on March 16, 2002; even if the execution of protective custody was terminated on March 31, 2004, it appears that the Defendant repeatedly committed the crime of this case against Defendant 2 under the same several laws during the period of subsequent release and two years of age, and that the victim’s face and one-half of the two years of age will not be deemed to have suffered any mental injury or injury, and the victim’s face and one-half of the instant case’s face will not be considered to be unfair.

2. Part of protective custody case

A. Summary of grounds for appeal

Where a decision to commence a new trial becomes final and conclusive, the court shall re-examine the case according to its instance, and the previous decision for new trial becomes null and void when a new judgment becomes final and conclusive. Thus, the court below erred by misapprehending the legal principles, which led the Defendant to a protective custody order, in accordance with Article 3 of the Addenda to the repealed Act (Act No. 7656, Aug. 4, 2005).

B. The judgment of the court below

According to Article 2 of the repealed Act, the court below sentenced the defendant to protective custody by applying the former Social Protection Act (amended by Act No. 7656, Aug. 4, 2005; hereinafter the same) for the reason that it is reasonable to maintain the validity of the part of the judgment subject to review among the judgment subject to review on the ground that it is not affected by the validity of the judgment subject to review. The court below ordered the defendant to protective custody by applying Article 2 of the repealed Act (amended by Act No. 7656, Aug. 4, 2005; hereinafter the same).

C. Judgment of the court below

However, it is difficult to accept the judgment of the court below for the following reasons.

When a decision to commence a new trial becomes final and conclusive, the new trial shall proceed to a new trial on the case subject to a new trial according to its instance level, and the new trial is completed, and the previous judgment subject to a new trial becomes final and conclusive, and the final and conclusive judgment subject to a new trial becomes null and void. As such, the judgment subject to a new trial is merely maintaining its validity on a provisional basis for executing a sentence and an incidental disposition rendered in the judgment subject to a new trial until the new judgment becomes final and conclusive. In addition, Article 2 of the Addenda to the repealed Act is related to the execution of protective custody in accordance with the final and conclusive judgment prior to the repeal of the Social Protection Act, and the new trial court does not apply to a new trial on a case subject to a protective custody claim, and thus, the court below erred

On the other hand, in relation to the scope of adjudication by the retrial court, there exists no ground for retrial for the part concerning habitual fraud, which is the cause of protective custody, as the Constitutional Court’s decision of unconstitutionality as to the part concerning the criminal facts of the judgment subject to retrial of this case, and there is no ground for retrial for the part concerning habitual fraud, which is the cause of protective custody of this case. In a final and conclusive judgment that found several criminal facts in concurrent crimes as guilty, if there exist grounds for retrial only for some of them, the facts constituting a crime for which no ground for retrial exists, the retrial court cannot reverse the conviction by re-examination of that part, and only means a trial for sentencing (see Supreme Court Decision 96Do477 delivered on June 14, 196). In light of the legal principles that the part concerning habitual fraud cannot be examined, and there is no room to change the part concerning protective custody by a sentencing hearing for habitual fraud, and that part concerning protective custody does not belong to the scope of adjudication by the retrial court. In such a case, the retrial court should only regard the part concerning the judgment of new judgment.

However, under the main sentence of Article 20(2) of the former Social Protection Act, a judgment in a protective custody case shall be sentenced simultaneously with the judgment of the defendant case. Under Article 20(7) of the same Act, an appeal, waiver or withdrawal of an appeal, waiver or withdrawal of an appeal, or a request for review is also deemed to have been filed against the judgment of the defendant case. The protective custody is an additional measure that is taken for the purpose of protecting society. The protective custody case has the nature of an incidental procedure that is deliberated and determined together on the premise of the defendant's case regarding a crime that is the cause of protective custody. If one sentence is imposed on a concurrent crime, criminal facts are included in the subject of a review court's judgment, and if the law of the judgment subject to review was amended or repealed after the judgment becomes subject to review, the Act at the time of retrial shall be applied to the criminal facts of this case. According to Article 20(5) of the former Social Protection Act and Article 326 of the Criminal Procedure Act, if there is no room to dismiss the judgment as to dismiss the judgment.

However, at the time of the judgment subject to a protective custody judgment, the former Social Protection Act, which is a law based on the protective custody claim, was repealed by Act No. 7656 of Aug. 4, 2005, and Article 3 of the Addenda thereto provides that the judgment of dismissal shall be dismissed with respect to protective custody claim during the trial at the time of the enforcement of the above repealed Act. Thus, the claim for protective custody of this case shall be dismissed

Therefore, the lower court, which sentenced the Defendant to protective custody by applying the former Social Protection Act, on the ground that the decision to commence a new trial does not affect the validity of the judgment subject to a new trial becomes final and conclusive, has committed an error of law affecting the conclusion of the judgment.

3. Conclusion

Therefore, since the appeal by the defendant against the part of protective custody among the judgment below is well-grounded, it shall be reversed pursuant to Article 364(6) of the Criminal Procedure Act, and the claim of this case shall be dismissed pursuant to Article 3 of the Addenda to the repeal of the Social Protection Act, and since the appeal by the defendant against the guilty part among the defendant's case is without merit, it shall be dismissed pursuant to

Judges highest (Presiding Judge)