[1] The case affirming the judgment of the court below that the period of invalidation of punishment is expired even during the period of execution of protective custody

[2] Whether protective custody disposition under Article 5 subparagraph 1 of the Social Protection Act is identical to protective custody disposition under subparagraph 3 of the Social Protection Act, and the scope of the court's ruling

[1] The case affirming the judgment of the court below that since punishment-related laws that limit the people's physical freedom should be strictly interpreted, the protective custody disposition, which has the nature of administrative disposition, cannot be interpreted as a punishment under Article 7 (1) of the Act on the Lapse of Punishment, etc., and thus, the period of invalidation of punishment cannot be seen as not being proceeded

[2] The protective custody disposition under Article 5 subparagraph 1 of the Social Protection Act and protective custody disposition under subparagraph 3 of the same Article cannot be deemed the same disposition for different elements. Thus, the court shall deliberate and determine whether the protective custody disposition under subparagraph 1 of the same Article constitutes the protective custody requirement under subparagraph 1 of the same Article, and it shall not be permitted to deliberate and determine whether the protective custody disposition falls under the protective custody requirement under subparagraph 3 of the same Article without the prosecutor's modification of the protective custody request. It is not permitted to deliberate and determine whether the protective custody requirement under subparagraph 3 of the same Article

[1] Article 7 (1) of the Act on the Invalidation of Punishment, etc., Article 5 of the Social Protection Act / [2] Article 5 subparagraph 1 and 3 of the Social Protection Act, Article 298 of the Criminal Procedure Act

[1] Supreme Court Decision 83Do144, 83Ga35 decided Apr. 26, 1983 (Gong1983, 932) / [2] Supreme Court Decision 82Da679 decided Apr. 12, 1983 (Gong1983, 844 decided Apr. 12, 1983) Supreme Court Decision 83Do547 decided Feb. 28, 1984 (Gong1984, 554)

Applicant for Custody

Prosecutor

Attorney Cho Han-hee

Seoul High Court Decision 96No273, 96No25 delivered on May 15, 1996

The appeal is dismissed.

We examine the prosecutor's grounds of appeal.

1. On the first ground for appeal

According to the reasoning of the judgment of the court below, the applicant for protective custody on February 7, 1969 was sentenced to imprisonment with prison labor for October 10, 197; 10 months from imprisonment with prison labor for night-time larceny in Southern Branch of the Seoul District Court on July 2, 197; 10 months from imprisonment with prison labor for larceny; 10 months from February 10, 1982; 1 and 6 months from imprisonment with prison labor for violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Larceny); 7 months from imprisonment with prison labor for violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, etc. of the Republic of Korea on July 24, 1984; 9 years from imprisonment with prison labor for violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, which was sentenced to imprisonment with prison labor for not more than 10 months; and 9 years from the expiration date of punishment for violation of the Act on the Aggravated Punishment, etc. of the Act on July 28, 1997.

2. On the second ground for appeal

A protective custody disposition under Article 5 subparagraph 1 of the Social Protection Act and a protective custody disposition under subparagraph 3 of the same Article cannot be deemed the same disposition for different elements. Thus, the court shall review and determine whether the protective custody disposition under subparagraph 1 of the same Article satisfies the requirements for protective custody under subparagraph 3 of the same Article. It shall not be permitted to review and determine whether the protective custody disposition falls under the requirements for protective custody under subparagraph 3 of the same Article without a prosecutor's modification of the prosecutor's request for protective custody (see Supreme Court Decisions 82Da679 delivered on April 12, 1983, 83Do38 delivered on April 12, 1983, 83Do1840, 83Do339 delivered on September 13, 1983).

In the same purport, the court below's decision that the applicant for protective custody of this case does not correspond to the requirements for protective custody under Article 5 subparagraph 1 of the Social Protection Act, and further dismissed the prosecutor's request for protective custody without examining and determining whether it falls under the requirements for protective custody under subparagraph 3 of Article 5 of the Social Protection Act is just, and there is no error of law such as misunderstanding of legal principles

3. Therefore, the appeal shall be dismissed. [This appeal is filed on the ground of erroneous determination of facts as to the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, among the judgment of the court below. However, according to the records, the appellant for custody did not submit a petition of appeal against the judgment of the court below within a legitimate period, and the prosecutor only filed an appeal against the part concerning the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, etc. of Specific Crimes, among the judgment of the court below, since the part concerning the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, which

Justices Ahn Yong-sik (Presiding Justice)