[1] The criteria and timing for determining whether "the risk of re-offenders" under Article 5 of the Social Protection Act exists

[2] The case holding that it cannot be concluded that there is no risk of recommitting a crime against a person subject to reduction of punishment on the ground that the person subject to reduction of punishment was sentenced to a long term punishment

[1] The existence of "risk of re-offenders" under Article 5 of the Social Protection Act shall be objectively determined by comprehensively taking into account all the circumstances such as the age, character and conduct, occupation and environment, family relation, criminal record, motive, frequency, means and consequence of the crime, circumstances after the crime, circumstances after the crime, and conditions of the opening. Such determination shall be based on the time of the judgment, since it is a assumptive judgment for the future.

[2] The case holding that it cannot be readily concluded that there is no risk of recidivism on the ground that the person subject to the warrant of the warrant of the warrant of the warrant of the warrant of the warrant of the warrant of the warrant of the crime is sentenced to a long-term punishment in full view of the criminal records, the motive, means and consequence of the crime, the age, character and environment, etc.

[1] Article 5 of the Social Protection Act / [2] Articles 5 and 20 of the Social Protection Act

[1] Supreme Court Decision 82Do142 delivered on June 22, 1982 (Gong1982, 719), Supreme Court Decision 84Do179 delivered on September 11, 1984 (Gong1984, 1687), Supreme Court Decision 94Do69 delivered on March 10, 1995 (Gong195Sang, 1655), Supreme Court Decision 99Do791, 99Do22 delivered on May 14, 199 (Gong199Sang, 1222)

Defendant and Appellant for Custody

Prosecutor, Defendant and Appellant for Custody

Attorney Park Dong-young

Seoul High Court Decision 2001No110, 2001No76 delivered on July 3, 200

The judgment of the court below on custody case shall be reversed, and the case shall be remanded to the Seoul High Court. The defendant's appeal shall be dismissed. 65 days in detention after the appeal shall be included in the principal

1. As to the defendant's appeal against the defendant's case

The judgment of the court below that found the Defendant guilty of the attempted robbery of this case, and that the Defendant did not have the ability to discern things or make decisions under the influence of alcohol at the time of each of the crimes in this case, or did not have the weak ability to do so, did not err by violating the rules of evidence or by misapprehending the legal principles as alleged in the grounds of appeal. Accordingly, this part of the grounds

In addition, considering the Defendant’s age, character, conduct and environment, motive, means, and consequence of the crime, there is no substantial reason to recognize that the lower court’s sentencing against the Defendant is extremely unfair. Therefore, this part of the grounds of appeal is not acceptable.

2. As to the prosecutor’s appeal on custody cases

In light of the fact that the requester for a warrant of protective custody has divided the errors and again committed the same offense as in this case, and the sentence of imprisonment with prison labor for twenty years is imposed, the lower court dismissed the request for protective custody on the ground that it is difficult to readily conclude that it is highly probable that the requester would again commit the same kind of crime after the completion of the execution of the sentence, and that there is no evidence to acknowledge otherwise.

However, the existence of "the risk of re-offenders" under Article 5 of the Social Protection Act shall be objectively determined by comprehensively taking into account all the circumstances such as the age, character and conduct, occupation and environment, family relation, criminal record, motive, frequency, means and consequence of the crime (see, e.g., Supreme Court Decision 94Do69, Mar. 10, 1995). Such determination is a constructive judgment on the future, and such determination shall be based on the time of the judgment (see, e.g., Supreme Court Decisions 82Do142, Jun. 22, 1982; 84Do179, Sept. 11, 1984).

In this case, the applicant for the warrant of custody was sentenced to a punishment of up to 11 years and eight months in total due to robbery, injury by robbery, etc., and was sentenced to a punishment of up to 11 years and eight months in total, and did not find a certain occupation after completion of the final sentence, and committed a crime over 15 times during the 23-day period beginning with the crime again and ending with 2-month period until the arrest, and the applicable method was planned, the damage results therefrom, and the victims did not fully pay damages. In full view of all the circumstances indicated in this case, including the record of the applicant for the warrant of custody, the motive, means and result of the crime, the age, character and behavior, and environment of the respondent for the warrant of custody, and the long-term sentence against the applicant for the warrant of custody became final and conclusive, and his parents did not receive education while living at an elementary school 3 years, and even if it was difficult to live in the environment, the applicant's risk of repeating the crime has been committed, even if it was erroneous.

Nevertheless, the court below determined that the risk of recidivism cannot be recognized for the reasons stated in its holding, and the court below erred by misapprehending the rules of evidence or by misapprehending the legal principles on the risk of recidivism, which affected the conclusion of the judgment. The grounds of appeal pointing this out are with merit.

3. Therefore, the judgment of the court below on the custody case shall be reversed, and the case shall be remanded to the court below, the defendant's appeal shall be dismissed, and a part of the detention days after the appeal shall be included in the original sentence

Justices Zwon (Presiding Justice)