Cases where it is not recognized that the risk of recidivism under Article 5 (2) 2 of the Social Protection Act is not recognized.

In cases where a person who was sentenced to imprisonment with prison labor for a violation of the Punishment of Violences, etc. Act on April 16, 1974 and was sentenced to suspension of indictment for a violation of the same Act on September 23, 1975, six months of imprisonment with prison labor for the same crime on September 28, 1976, eight months of short term, six months of short term, and one year and six months of imprisonment with prison labor for the same crime on September 28, 1976, and one year and six months of expiration of the period of suspension of indictment for a violation of the Punishment of Violences, etc. Act on July 2, 1980, even if the defendant was punished as a repeated offense for committing a violation of the Act on the Punishment of Violences, etc. again within three years after the execution of the final sentence is completed and discharged, if the defendant attempted his parent's business after completing the final sentence, and actually lives for a contingent crime, and if the defendant has repented the same kind of criminal offense with depth, it is difficult to recognize that the defendant has the same risk of repeat.

Article 5(2)2 of the Social Protection Act, Article 20(1) of the Social Protection Act

Defendant

Seoul District Court Decision 81 High Gohap182, 81 High 39)

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not more than ten months.

The ninety days of detention days prior to the pronouncement of the judgment below shall be included in the above sentence.

The request for custody of this case is dismissed.

The summary of the grounds for appeal by the applicant who is concurrently the defendant and vice versa (hereinafter referred to as the "defendants") is as follows: first, although the defendant drinks alcohol in the U.S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S

Therefore, first of all, the first point of the grounds for appeal is sufficient to acknowledge the crime at the time of original adjudication according to each evidence duly examined and adopted by the court below, and there is no error of misunderstanding of facts as pointed out in the theory of lawsuit, and therefore the above appeal is groundless.

Next, the second reasons for appeal are as follows: (a) considering the whole points of the reasons for appeal, the age, character and conduct, environment, criminal record, motive for the crime, method of damage, degree of damage, circumstance after the crime, etc., the sentence for the accused case against the court below is too heavy; (b) therefore, it is reasonable to discuss the defendant's appeal against the accused case, and the part concerning the accused case among the court below's judgment should be reversed.

According to the reasoning of the judgment below, the defendant was found to have habitually committed crimes and who committed a crime corresponding to death penalty, imprisonment with or without prison labor for life or for not less than five years, and is likely to repeat crimes pursuant to Article 5 (2) 2 of the Social Protection Act, and the defendant is found to have committed several crimes, as stated below, and is likely to have committed a crime corresponding to death penalty or imprisonment with or without prison labor for life or for not less than five years. However, according to the defendant's statement at the court below and the record of the investigation data prepared by the third head of the Public Security Headquarters, the defendant again was sentenced to the Family Court for a violation of the Punishment of Violence, etc. Act on April 16, 1974, and he again was sentenced to imprisonment with prison labor for not more than 6 months at the Seoul District Prosecutors' Office and for not more than 9 years, and the defendant was sentenced to imprisonment with prison labor for not more than 9 years, and he was sentenced to imprisonment with prison labor for the same crime on July 28, 1976.

Thus, although the prosecutor's request for custody of this case must be dismissed without any reason, the court below recognized the defendant's 7-year assistance unit in the protective custody without any evidence, or erred by misapprehending the legal principles on the risk of recidivism under Article 5 (2) 2 of the Social Protection Act, and affected the judgment. Therefore, the part of the judgment of the court below concerning the protective custody claim should also be reversed.

Therefore, the judgment of the court below is reversed in accordance with Article 364(2) and (6) of the Criminal Procedure Act, and the judgment is again ruled as follows.

The criminal facts and evidence which a member found guilty are identical to those in the judgment of the court below, in addition to the deletion of "the danger of recidivism" as stated in the last sentence of the criminal facts in the judgment below, and the deletion of "the danger of recidivism" and "the danger of recidivism" as stated in the first sentence in the summary of the evidence and "the risk of recidivism" as stated in the 13th sentence. Thus, all of them are cited as it is.

The court below's decision falls under Article 2 (1) of the Punishment of Violences, etc. Act and Article 350 (1) of the Criminal Act. The above crime constitutes a repeated crime under Article 35 (1) of the Criminal Act in relation to the crime of injury in all of the judgment, and thus, Article 35 (2) of the Criminal Act is subject to aggravation of repeated crime within the limit of the proviso of Article 42 of the same Act. The defendant is not subject to punishment in light of the agreement with the victim after the crime, and considering the circumstances such as the fact that the victim is not subject to punishment in light of the agreement with the victim after the crime and the fact that the mistake is divided, the defendant shall be punished in accordance with Article 53 and Article 55 (1) 3 of the same Act, and the defendant shall be punished in accordance with Article 57 of the same Act, and the period of detention prior to the sentence shall be included in the above punishment.

As stated in the judgment, the prosecutor claims that the defendant be punished for a period of seven years under protective custody pursuant to Article 5(2)2 of the Social Protection Act, since the defendant was a person who is habitually recognized for committing several criminal facts, and has committed a crime subject to death penalty, imprisonment for life, or imprisonment with or without prison labor for not less than five years. However, as seen in the above reasons for reversal, there is no evidence to regard the defendant as being in danger of recidivism, and thus, the prosecutor dismissed the request for protective custody in this case pursuant to Article 20(1)

It is so decided as per Disposition for the above reasons.

Judges Kim Young-jin (Presiding Judge)