The requirements for protective custody under Article 5(1) of the Social Security Act and the proof of the risk of recidivism

Article 5 (1) of the Social Protection Act is deemed to pose a risk of recidivism in the event that the requirements for necessary protective custody are met.

Article 5 (1) of the Social Protection Act

Supreme Court Decision 82Do680 Decided February 22, 1983, 86Do234 Decided December 9, 1986, 86Do2530, 86Do276 Decided February 10, 1987

Defendant

Defendant

Attorney Cho Jong-chul

Daegu High Court Decision 87No1221, 87No168 delivered on October 15, 1987

The appeal is dismissed.

The number of detention days after an appeal shall be included in the calculation of the original sentence.

We examine the grounds of appeal.

1. As to the grounds of appeal by a state appointed defense counsel

As long as the requirement of protective custody under Article 5(1) of the Social Protection Act satisfies the necessary protective custody requirement, it shall be deemed that there is a risk of re-offending in the law, the party member's case (see Supreme Court Decision 82Nu680, Feb. 22, 1983) does not recognize the necessity of its modification. Therefore, there is no error of law such as the theory of lawsuit, incomplete hearing, or omission of judgment in the judgment below

In addition, Article 5 (1) of the Social Protection Act cannot be said to violate Article 11 (1) of the Constitution.

We cannot accept the conclusion of the judgment of the court below in its independent opinion.

2. As to the grounds of appeal by the defendant and the applicant for concurrent office (hereinafter only referred to as the "defendant"), the record does not appear to have been in a state of mental disorder due to drinking at the time of the instant crime. Therefore, the judgment below to the same effect does not err in the misapprehension of legal principles.

In addition, in light of the facts established by the judgment of the court of first instance, the measures of the court below that maintained the judgment of the court of first instance at the time of ten years of protective custody pursuant to Article 5 (1) 1 of the Social Protection Act shall be justified and there is no violation of law. The arguments are groundless.

3. The appeal shall be dismissed, and part of the detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating judges.

Justices Choi Jae-ho (Presiding Justice)