A. Criteria for determining "risk of re-offenders" under Article 5 (2) of the Social Protection Act

B. The case reversing the judgment of the court below that there was no risk of recidivism

A. "Risk of re-offending" under Article 5 (2) of the Social Protection Act refers to a case where it is highly probable that the requester for the re-offending will stop the crime again in the future. In determining the risk of re-offending, it shall be objectively determined by comprehensively taking into account all the circumstances such as the age, character, family relation, occupation, property level, criminal record, situation of the request for protective custody, and the motive and method of the crime, i.e., the motive and method of the crime, and the interval between the previous crime and the previous crime.

B. The case reversing the judgment of the court below that there is no risk of recidivism

Article 5 (2) of the Social Protection Act

A. Supreme Court Decision 82Do503 Decided December 14, 1982, 82Da503 Decided October 25, 1983, 83Do374 Decided November 24, 1987, and 87Do199 Decided November 24, 198

Applicant for Custody

Prosecutor

Seoul High Court Decision 87No189 delivered on August 28, 1987

The part of the judgment below regarding protective custody claim shall be reversed and remanded to the Seoul High Court.

The prosecutor's grounds of appeal are examined.

Article 5 (2) of the Social Protection Act provides "risk of a crime" refers to a case where it is highly probable that the requester for preventive custody would stop a crime again. In determining the risk of recidivism, the court below should objectively consider all the circumstances such as the age, character, family relation, occupation, degree of property, criminal records, the situation such as the situation of the requester for preventive custody, the motive and method of the crime, and the interval between time and the crime committed before the crime (see, e.g., Supreme Court Decision 82Do503, Dec. 14, 1982; 83Do374, Oct. 25, 1983; 83Do374, Oct. 25, 1983; 2000Do374, Oct. 14, 1983; 2000Do374, etc.). In light of the reasoning of the court below and the judgment of the first instance, the requester for preventive custody had been sentenced to imprisonment for more than three years and two years, who suffered from the last punishment of the crime.

However, examining the facts acknowledged by the first instance court by comparing the records of the crime, the petitioner for the second instance has been sentenced to a fine for fraud more than three years and two months in total on five occasions before and after the crime. On the other hand, on February 3, 1980, nine years have passed since his name and date of birth were entered into a crime, and the fact that he had been sentenced to suspension of indictment more than eight years since he did not discover the fact that he had a wind, and it is completely identical to the applicant for the second instance judgment with a relatively high-class method and method of the crime, and it is difficult for the lower court to view that the applicant for the second instance judgment failed to know of the fact that he had a long-term danger of recidivism, including the fact that the applicant for the second instance judgment had a long-term criminal relation, and thus, he cannot be seen as one of the applicants for the second instance judgment having a right to suffer from recidivism (one day before and after the second instance judgment, which is less than 13 days ago.)

Therefore, the judgment of the court below concerning protective custody claim shall be reversed, and the case shall be remanded to the court below. It is so decided as per Disposition by the assent of all Justices

Justices Choi Jae-ho (Presiding Justice)