Criteria for determining the risk of recidivism under Article 5 (2) 2 of the Social Protection Act

Article 5 (2) 2 of the Social Protection Act does not directly recognize the risk of recidivism of the same kind of criminal records and the recognition of habituality. It should be determined by considering the following factors: the defendant's age, health status, family relationship, occupation, motive of the crime, the period of final release and the period between the time of punishment and the time of the crime.

Article 5 (2) of the Social Protection Act

Defendant

Prosecutor and Defendant

Seoul Criminal District Court (Supreme Court Decision 81 Gohap230, 81Sang53)

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for three years.

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

The claim for protective custody in this case is dismissed.

The defendant's appeal is dismissed.

The first point of the gist of the prosecutor's appeal is that the defendant and the respondent for the defendant's appeal (hereinafter referred to as the "defendants") had nine times the same criminal records of larceny, and according to various evidence in this case, the defendant can be sufficiently recognized that there is a danger of crime. However, the court below dismissed the defendant's request for the protective custody of this case because the court below did not pose a risk of repeating a crime. The second point of the judgment of the court below is that the judgment of the court below is unfair because the judgment of the court below is too unreasonable. The first point of the main point of the defendant's appeal is that the judgment of dismissal of prosecution against the defendant should be made in accordance with subparagraph 5 or 6 of Article 327 of the Criminal Procedure Act as the victim's wife and the second point and the second point of the appeal of the public defender are too unreasonable.

Therefore, the first ground for appeal by the public prosecutor is examined. The facts that the defendant committed larceny over nine times and habitually and twice at once are recognized by various evidence duly examined by the court below. However, the risk of recidivism is premised on the risk of recidivism under Article 5 (2) 2 of the Social Protection Act, and it is not acknowledged that there is a high risk of recidivism immediately because there are many criminal records of the same kind and habitual crimes, and there is insufficient possibility or potential danger of recidivism. The standard for judgment is that the defendant is not enough to be determined by taking account of various circumstances such as the defendant's age, health status, family relation, occupation, and period of punishment before and after the crime, and circumstances after the crime. According to the various evidences examined by the court below, it is difficult to find the defendant that there was a new danger of recidivism from 10 years of age to 20 years of age, and it is difficult to accept the defendant's last 10 years of age, and it is difficult to find that there is a new danger of recidivism after the crime, and it is still difficult to accept the defendant's new statement as evidence.

The first ground for appeal by the defendant is examined. According to the evidence duly examined by the court below, the victim of the first crime charged in this case is recognized as the parent-child relationship of the defendant, but there is no application of the relative precedent between the defendant and the wife, so there is no ground for appeal by the defendant claiming the violation of this Act.

Finally, in light of the various circumstances such as the defendant's age, character and conduct, environment, motive, means, result, and circumstances after the crime, the decision of the court below on the defendant is considered to be unfair because the defendant's appeal is too unreasonable rather than too heavy, and therefore, the prosecutor's appeal is without merit. Therefore, the decision of the court below is without merit.

Therefore, the decision of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, since the appeal by the defendant is without merit in accordance with Article 364 (4) of the Criminal Procedure Act, and the prosecutor's appeal is with merit.

The criminal facts of the defendant recognized as a party member and the summary of the evidence are as shown in each corresponding column of the judgment of the court below, and all of them are cited in accordance with Article 369 of the Criminal Procedure Act.

Each so-called of the defendant's judgment shall, in combination, fall under Article 5-4 (1) and Article 330 of the Act on the Aggravated Punishment, etc. of Specific Crimes, select a limited term of punishment and the defendant shall be punished by imprisonment for three years within the scope of the term of punishment. In applying Article 57 of the Criminal Act, 90 days out of the number of detention days before the sentence

The summary of the reason for the claim for protective custody of this case is that the defendant is a person who is recognized as habitually larceny due to multiple larceny crimes and is in danger of recidivism by committing a crime of imprisonment with prison labor for life or for not less than five years and committing a crime of imprisonment with prison labor for a maximum period of not less than five years. As stated in the judgment of appeal, the defendant's claim for protective custody of this case return to the fact that there is no evidence that the defendant is a risk of recidivism, and thus, it is dismissed in accordance with Article 20

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

Judge final (Presiding Judge) Kim Jong-dae et al.