In case of a claim for only protective custody under Article 5(1) of the Social Protection Act, whether the case constitutes a protective custody requirement under Article 5(2) of the Social Protection Act (negative)

The protective custody disposition under Article 5 (1) of the Social Protection Act and the protective custody disposition under paragraph (2) of the same Article cannot be deemed to be the same disposition for different elements. Thus, the court shall deliberate and determine whether the protective custody disposition under paragraph (1) of the same Article falls under the requirement of protective custody under paragraph (1) of the same Article, and it shall not be permitted for a prosecutor to deliberate and determine whether the protective custody disposition falls under the requirement of protective custody under paragraph (2) of the same Article without the prosecutor's request.

Article 5 of Social Protection Act

Supreme Court Decision 82Do679 delivered on April 12, 1983 (Dong)

Applicant for Custody

Prosecutor

Attorney Completion

Daegu High Court Decision 82No1546,82No377 delivered on December 21, 1982

The appeal is dismissed.

1. We examine the Prosecutor’s ground of appeal No. 1.

In light of the records, the court below did not err by misapprehending the legal principles as to habitualness, such as the theory of lawsuit, which held that the defendant's crime of this case is merely contingent and it is difficult to be viewed as a thief.

2. We examine the second ground for appeal.

Since protective custody disposition under Article 5 (1) of the Social Protection Act and protective custody disposition under paragraph (2) of the same Article cannot be deemed the same disposition different from each constituent element, the court shall deliberate and determine whether the protective custody disposition under paragraph (1) of the same Article falls under the protective custody requirement under paragraph (1) of the same Article, and it shall not be permitted as it infringes upon the defense right of the requester for protective custody under paragraph (2) of the same Article without the prosecutor's request.

Therefore, the court below's decision that the prosecutor's request for protective custody does not correspond to the protective custody requirement under Article 5 (1) of the Social Protection Act for the requester for protective custody of this case, and further dismissed the prosecutor's request for protective custody without examining and determining whether the request falls under the protective custody requirement under Article 5

3. All arguments are without merit, and the appeal is dismissed. It is so decided as per Disposition by the assent of all participating judges.

Justices Lee Lee Sung-soo (Presiding Justice)