A. Whether the same case constitutes double punishment for the same crime where both imprisonment and protective custody are imposed (negative)

B. Whether it violates Article 13(1) of the Constitution of the Republic of Korea or Article 13(4) of the Addenda of the amended Act that a person who was confirmed to be sentenced to necessary protective custody prior to the amendment of the Social Protection Act was sentenced to protective custody again by a retrial after the amendment (negative

C. Whether the habitual nature of the above law is punished by retroactive legislation or double punishment for the same act on the basis of the previous conviction prior to the enforcement of the Social Protection Act (negative)

D. The case reversing the judgment of the first instance that did not include the number of days of custody and custody at all in the period of custody and custody and the judgment below that maintained it was unlawful

A. The sentence of imprisonment with prison labor and protective custody together for the same issue cannot be repeatedly punished for the same crime.

B. The seven-year sentence of protective custody under the proviso of Article 5(1)1 of the Social Protection Act (amended by Act No. 4089, Mar. 25, 1989) was finalized after the amendment of the above Act, and the decision to commence a retrial for the part requesting a protective custody becomes final and conclusive after the amendment of the above Act. After the prosecutor changed the indictment to the protective custody claim under Article 5 subparag. 1 of the above amendment, it cannot be said that the prosecutor’s re-order of protective custody by retrial violates Article 13(1) of the Constitution or Article 4 of the Addenda of the above amended Act.

C. The recognition of habituality under the above law, based on the previous conviction before the enforcement of the Social Protection Act, cannot be punished by retroactive legislation or punished by the same act.

D. According to Article 20(6) of the Social Protection Act, the number of days of detention before a sentence of custody includes all or part of the number of days of custody in the period of custody, and according to Article 42 of the same Act, the provisions of the Criminal Procedure Act shall apply mutatis mutandis to a protective disposition within the extent not contrary to its nature, except as otherwise provided in the same Act. Thus, even though an applicant for protective disposition was detained by the custody warrant of the first instance court from the date of detention to the date of final appeal, even though the first instance court did not include the number of days of custody before the judgment, and maintaining the first instance court's first instance court's judgment against this excessive violation of the Social Protection Act and the Criminal Procedure Act, it is obvious that the judgment of the court below and the first instance court's decision were not exempt

(a)B. Article 5(a)(b) of the Social Protection Act; Article 13(1)(b) of the Constitution of the Republic of Korea; Article 4 of the Addenda to the Social Protection Act; Article 483(1) of the Criminal Procedure Act; Article 5(1) proviso of the former Social Protection Act (amended by Act No. 4089, Mar. 25, 1989); Article 88Hun-Ga5, 8, 89 Constitutional Court Decision 44 Constitutional Court Decision 88Hun-Ga5, Jul. 14, 1989; Article 20(6) and Article 42 of the Social Protection Act.

A. Supreme Court Decision 89Do143 delivered on October 24, 1989 (Gong1989,1827) 89Do148 delivered on December 8, 1989 (Gong1990,421) 90Do135,90Do19 delivered on March 27, 1990 (Gong1990,1024 delivered on October 25, 1983)

Applicant for Custody

Applicant for Custody

Attorney Kim Young-chul

Daegu High Court Decision 90No26 delivered on June 20, 1990

The judgment of the court below and the judgment of the first instance are reversed.

A requester for custody shall be punished by protective custody.

170 out of the number of days of detention prior to the pronouncement of the judgment of the first instance shall be included in the period of custody.

The grounds of appeal by the requester for the custody are examined together.

According to the records, the applicant for protective custody was sentenced to one year and six months of imprisonment due to habitual fraud, etc. on December 20, 198, and seven years of protective custody under Article 5(1)1 proviso of the Social Protection Act (amended by Act No. 4089 of March 25, 1989) which was enforced at the time. On October 21, 1989, the first instance court and the lower court did not punish the applicant for protective custody under Article 5 subparag. 1 of the above amended Act, and the first instance court and the lower court were to revise the indictment with the request for protective custody under Article 5 subparag. 1 of the above amended Act, and the sentence of imprisonment with prison labor and protective custody together with the above case cannot be deemed to have been repeatedly punished for the same crime, and a new sentence of protective custody cannot be deemed to violate Article 13(1) of the Constitution or the revised Act.

In addition, considering the reasoning of the judgment below in comparison with the records, it is proper that the court below recognized the defendant's habitualness and risk of repeating the crime, and there is no error of law by misunderstanding the legal principles as to the violation, habitualness, and risk of repeating the crime in the above recognition process.

However, according to Article 20(6) of the Social Protection Act, the number of days of detention before a sentence of custody is included in the period of custody, and Article 42 of the same Act provides that the provisions of the Criminal Procedure Act shall apply mutatis mutandis to a protective disposition, except as otherwise provided in the same Act. Thus, in this case where it is evident that an applicant for protective custody has been detained since the protective custody warrant issued by the court of first instance was issued on October 23, 1989, the number of days of detention before a sentence of custody is not included in the period of custody, and that the court of first instance maintained the first instance judgment on the basis that it is obvious that the court of first instance did not include the number of days of custody before a sentence of custody, and that it would affect the result of the judgment for violating the provisions of the Social Protection Act and the Criminal Procedure Act, the court of first instance and the court of first instance shall not be exempt from all reversal, and party members shall be directly decided pursuant to Article 396 of the Criminal Procedure Act.

Since the facts and summary of the requirements of care and custody and custody of the applicant who is admitted as a member of a party are as stated in the judgment of the court of first instance, Article 42 of the Social Protection Act and Articles 396 and 366 of the Criminal Procedure Act are cited as they are.

In light of the law, each act of the person subject to protective custody under Article 351 and Article 347 (1) of the Criminal Act, including the act of the person subject to protective custody under Article 2 subparagraph 1 of the Social Protection Act, is a person who has been sentenced to imprisonment without prison labor or heavier punishment on at least two occasions for the same or a similar crime and whose total term of punishment is at least three years, and who again commits the same or a similar habitual crime and is recognized as a risk of recidivism after the execution of the final sentence, so the person subject to protective custody shall be subject to protective custody under Article 5 subparagraph 1 of the same Act and Article 20 (1) of the same Act, and the person subject to protective custody shall be included 170 days out of the number of days of custody before the pronouncement of the judgment of the first instance pursuant to Article 2 subparagraph 6 of the same Act in

Justices Lee Chang-chul (Presiding Justice)