In a case where a person who has completed a part of a protective custody disposition commits a crime under Article 5 subparag. 1 of the Social Protection Act and is in danger of recidivism, whether the protective custody disposition box again is against the principle prohibiting double punishment or the principle prohibiting double prosecution (negative)

Even if a person who has completed a part of a protective custody disposition did not receive a sentence more than two years in total for the same or similar crimes as stipulated in Article 5 subparag. 1 of the Social Protection Act, even if the previous convict case, which served as the requirement for the protective custody disposition, falls under a convict case under Article 5 subparag. 1 of the Social Protection Act, and thus, a crime under Article 5 subparag. 1 of the same Act has been committed and the risk of recidivism exists, he/she may be subject to protective custody under Article 5 subparag. 1 of the same Act. This does not conflict with Article 327 subparag. 3 of the Criminal Procedure Act that violates the principle of prohibition of double punishment under Article 13(1) of the Constitution, or prohibits double prosecution.

Article 13(1) of the Constitution of the Republic of Korea; Article 327 subparag. 3 of the Criminal Procedure Act; Article 5 subparag. 1 of the Social Protection Act

Defendant and Appellant for Custody

Defendant and Appellant for Custody

Attorney Park Jong-soo

Gwangju High Court Decision 91No189, 91No13 delivered on April 12, 1991

The appeal is dismissed.

47 days of detention after an appeal shall be included in the calculation of the original sentence.

The grounds of appeal by the defendant and the defendant and the defense counsel are also examined.

Where a person who has been sentenced to imprisonment without prison labor or more for at least three times for the same or similar crimes as prescribed by Article 5(1)1 of the former Social Protection Act (amended by Act No. 4089, Mar. 25, 1989) and has been sentenced to imprisonment for at least five years in total due to a crime under the same or similar crimes, and has committed a crime under the same subparagraph within three years after having been sentenced to the execution of all or part of the final sentence or exempted from the execution of the sentence, he/she shall be sentenced to imprisonment for at least two years, and where part of the protective custody disposition has been completed, he/she shall be sentenced to imprisonment for at least two years for the same or similar crimes under Article 5 subparag. 1 of the Social Protection Act after the above protective custody disposition, even if he/she had not been sentenced to more than two years in total due to the same or similar crimes under Article 5 subparag. 1 of the same Act, and thus, he/she constitutes a convict under Article 5 subparag. 1 of the same Act. 1 of the same Act.

Therefore, the court below's measure of maintaining the judgment of the court of first instance that ordered the defendant and the respondent for protective custody is just and there is no violation of the principle of prohibition of double punishment under Article 13 (1) of the Constitution or the prohibition of double prosecution under Article 327 (3) of the Criminal Procedure Act.

No issue may be employed.

In addition, it does not constitute a legitimate ground for appeal that the court below acknowledged the risk of re-offending to the requester for re-offending, because it is against the two years of imprisonment with prison labor and this case for which protective custody is pronounced.

Therefore, the appeal shall be dismissed and 47 days of detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Choi Jae-ho (Presiding Justice)