[1] Criteria for determining the risk of recidivism under Article 5 of the Social Protection Act

[2] The case holding that it is difficult to recognize the risk of recidivism under Article 5 of the Social Protection Act, in case where the thief who was suspended from indictment and other larceny were indicted as a thief and sentenced to not guilty of the subsequent thief

[1] The risk of repeating a crime, which is a protective custody requirement under Article 5 of the Social Protection Act, is not enough enough. The possibility of repeating a crime requires a high probability that the requester subject to protective custody may injure the legal peace by committing a crime again in the future. The criteria for determining the crime should be determined by comprehensively taking into account all the circumstances such as the occupation and environment of the requester subject to protective custody, age, family relationship, criminal conduct prior to the crime, motive, recovery, means, circumstances after the crime, and the situation after the crime. Moreover, the risk of repeating a crime cannot be said to have been necessarily caused by habitual habits.

[2] The case holding that it is difficult to recognize the risk of recidivism under Article 5 of the Social Protection Act in a case where a person was not guilty of the subsequent thief, who was charged with the larceny and other larceny committed in violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, together with the

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

[1] Supreme Court Decision 86Do156 delivered on September 9, 1986 (Gong1986, 1341), Supreme Court Decision 89Do108 delivered on August 8, 1989 (Gong1989, 1388), Supreme Court Decision 89Do149 delivered on November 28, 1989 (Gong190, 178), Supreme Court Decision 91Do128 delivered on November 12, 1991 (Gong192, 159), Supreme Court Decision 92Do13 delivered on September 22, 1992 (Gong192, 3039)

Defendant

Defendant and Appellant for Saryary Employment

Attorney Seo-sung et al.

Seoul High Court Decision 98No3086, 98No182 delivered on February 4, 199

The part of the judgment below regarding custody claim is reversed, and that part of the case is remanded to Seoul High Court. The appeal on the defendant case is dismissed. 85 days out of the number of detention days after the appeal shall be included in the original sentence.

The grounds of appeal by the defendant and his state appointed defense counsel are also examined.

1. As to the defendant case

In light of the records, the court below is just to punish the defendant as a crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Larceny) in which the court below held that the defendant's crime of this case was caused by the theft behavior, and there is no error of misconception of facts or misapprehension of legal principles as alleged in

The assertion that the detention of the defendant is unlawful does not affect the conclusion of the judgment, unless the above illegality has been affected by the judgment (in case of the defendant's assertion, it is evident that such illegality occurred after the pronouncement of the judgment of the court below, and it does not affect the judgment of the court below). It cannot be a legitimate ground of appeal under Article 383 of the Criminal Procedure Act, and it cannot be a legitimate ground of appeal in this case where a sentence of less than 10 years has been sentenced. The argument

2. As to protective custody claim

A. According to the reasoning of the judgment below, the court below held that the defendant was sentenced to imprisonment with prison labor for larceny on August 29, 1972 at the Seoul District Criminal Court for eight months, one year of imprisonment with prison labor for larceny in the same court on February 20, 1973, two years of imprisonment with prison labor for larceny in the same court on June 18, 1974, two years with prison labor for special larceny in the same court on September 29, 1982, five years of imprisonment with prison labor for a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Larceny) from Seoul High Court on March 11, 1986, and ten years of protective custody and sentenced to the above protective custody disposition on April 26, 196, and that there was a risk of recidivism by the victim's new prison in the new prison of Songpa-gu Special Metropolitan City on April 1, 1996, and the victim's new inmate's new inmate's new prison on March 137, 1998.

B. The risk of repeating a crime, which is a protective custody requirement under Article 5 of the Social Protection Act, is insufficient only to the possibility of recidivism. It is highly probable that the requester for protective custody, who committed a crime again in the future, will injure the legal peace. The criteria for such determination shall be determined by comprehensively taking into account all the circumstances such as the occupation and environment of the requester for protective custody, age, family relationship, criminal conduct before the crime in question, motive for the crime in question, recovery, means after the crime in question, circumstances after the crime in question, etc. Furthermore, the risk of repeating a crime cannot be deemed to have been necessarily caused by habitual habition (see, e.g., Supreme Court Decisions 92Do13, Sept. 22, 1992; 91Do128, Nov. 12, 191; 89Do149, Nov. 28, 1989).

C. According to the records, the defendant was found to have been released from prison due to a protective custody disposition for habitual larceny on several occasions as stated in the judgment of the court below. On the other hand, the defendant obtained vocational training in the protective custody center, and obtained the certificate of qualification for flower cultivation technician. On April 26, 1996, the defendant was found not guilty of the crime of larceny on April 22, 197, when he operated KON cafeteria as a work compensation received at the time of release, with the help of the defendant's punishment, while he operated the busing, with the help of the defendant's punishment, he was detained on the charge of larceny, and the defendant was released on bail on December 9 of the same year, but was released on March 10, 1998, and was found not guilty of the crime of larceny on the ground that he was not guilty of the crime of larceny by the court below on the ground that he was found guilty on the ground that he was not guilty of the crime of larceny on the ground that he was found guilty on the ground that the defendant was not guilty.

As such, the crime of this case, which the court below found guilty, is a case in which the prosecutor first sentenced to the suspension of indictment, and the defendant was prosecuted at the same time when he prosecuted another crime that was found not guilty. As a result, the defendant was prosecuted for the crime of this case whose indictment was suspended even though there was no change in situation such as committing another crime after the suspension of indictment, and was recognized as having the risk of re-offending. As such, considering the defendant's age, effort to correct the crime of this case after the release of the indictment, motive and means to prevent the crime of this case, etc., it is difficult to conclude that the defendant has a high probability of re-committing the same crime after the discharge of the principal punishment of this case.

D. Nevertheless, the court below did not err by misapprehending the legal principles as to the risk of recidivism, which is a requirement for protective custody, and failing to exhaust all necessary deliberations, on the ground that the defendant's risk of recidivism is recognized under Article 5 of the Social Protection Act, and thus, it did not adversely affect the conclusion of the judgment. The allegation pointing this out has merit.

3. Therefore, the appeal concerning the defendant's case is dismissed in the judgment below. The part concerning custody claim is reversed and remanded to the court below. The part concerning the case is included in the number of detention days after the appeal in the original sentence. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Yong-hun (Presiding Justice)