[1] The meaning of the risk of recidivism under Article 5 of the Social Protection Act and the standard for determining the risk of recidivism

[2] The court's trial method necessary to affirm the risk of an objective recidivism

[1] The danger of repeating a crime under Article 5 of the Social Protection Act is not sufficient enough to repeat a crime, and it is highly probable that the requester for the prevention of a crime would injure the legal peace by committing a crime again in the future. The existence of the risk of repeating a crime should be objectively determined by comprehensively assessing all the circumstances such as the job and environment of the requester for the prevention of a crime, the behavior before the crime, the motive, means, circumstances after the crime, and the situation after the crime, etc., and it cannot be said that there is a danger of repeating a crime because the crime in question was committed with habitual damps.

[2] The court shall not simply refer to the investigation records conducted by the investigation agency, but shall additionally secure separate objective data on all the circumstances necessary for examining the risk of recidivism, such as the subjective tendency, environment, rehabilitation, edification, improvement possibility, etc. of the respondent subject to identification, and shall determine whether the requester subject to identification is in danger of recidivism.

[1] Article 5 of the Social Protection Act / [2] Article 5 of the Social Protection Act

[1] Supreme Court Decision 89Do108 delivered on August 8, 1989 (Gong1989, 1388), Supreme Court Decision 89Do149 delivered on November 28, 1989 (Gong1990, 178), Supreme Court Decision 92Do13 delivered on September 22, 1992 (Gong1992, 3039), Supreme Court Decision 93Do97 delivered on November 9, 1993 (Gong194, 115) (Gong194, 115), Supreme Court Decision 9Do791 delivered on May 14, 199, 199; Supreme Court Decision 200Do2229 delivered on October 25, 2002 (Gong199, 1222, 205Do2659, Feb. 25, 2005)

Defendant and Appellant for Custody

Defendant and Appellant for Custody

Attorney Yellow-il

Busan High Court Decision 2003No390, No604, 2003No15 decided September 3, 2003

The judgment of the court below on custody case shall be reversed, and this part of the case shall be remanded to Busan High Court. The appeal on the defendant case shall be dismissed. 70 days out of the number of detention days after the appeal shall be included

We examine the grounds of appeal.

1. Defendant case;

Examining the evidence admitted by the court below in light of the records, we affirm the judgment of the court below which found the defendant guilty of habitual fraud as to the defendant, and there is no violation of the rules of evidence or misapprehension of the legal principle as alleged.

2. As to custody cases

The risk of re-offending under Article 5 of the Social Protection Act refers to a short possibility of re-offending, and there is a considerable probability that the requester for re-offending will injure the legal peace by committing a crime in the future. The existence of the risk of re-offending should be objectively determined by comprehensively assessing all the circumstances, such as the occupation and environment of the requester for re-offending, the motive, means, circumstances after committing the crime, and the outline of the crime, and it cannot be said that there is a danger of re-offending due to the habitual habition of the crime (see, e.g., Supreme Court Decisions 89Do108, Aug. 8, 1989; 89Do149, Nov. 28, 1989; 92Do13, Sept. 22, 1992; 9Do294, Nov. 39, 199; 200Do979, Sept. 29, 209; 9Do97, Sept. 29, 2097

According to the records, the requester for crime of fraud was sentenced to imprisonment with prison labor for the previous district court on July 25, 196 or for nine months, or for the use of the above investigation documents. On December 1, 1998, Busan District Court sentenced the defendant to the crime of fraud, forgery of forged public documents, forgery of forged public documents, and uttering of falsified public documents, and so there is no possibility that the above punishment would be imposed on the requester for crime of fraud, because the requester for crime of fraud would be more severe than fraud, and the defendant for crime of conspiracy of falsified public documents would be more likely to have been punished in light of the above circumstances, the defendant for crime of fraud is still subject to punishment of the same type of crime of fraud.

Therefore, the court below should not simply refer to the investigation records conducted by an investigation agency, but also have to secure separate objective data on all the circumstances necessary for examining the risk of recidivism, such as the subjective inclination, environment, rehabilitation, edification, improvement possibility, etc. of the requester subject to protective custody, and then have deliberated carefully, and then have judged whether the requester subject to protective custody is in danger of recidivism. However, maintaining the judgment of the court of first instance in protective custody without reaching this, it is an unlawful act that affected the conclusion of the judgment by misapprehending the legal principles on the risk of recidivism as seen above or failing to exhaust all necessary deliberations. The ground of appeal pointing this out is with merit.

3. Conclusion

Therefore, the judgment of the court below as to custody cases shall be reversed, and this part of the case shall be remanded to the court below for a new trial and determination. The appeal as to the accused case shall be dismissed, and 70 days out of the detention days after the appeal shall be included in the original sentence, and it is so decided as per Disposition by the assent

Justices Cho Cho-Un (Presiding Justice)