[1] Where the nature of a detention warrant has changed to a custody warrant under Article 16 of the Social Protection Act, and the prosecutor subsequently filed a non-prosecution case and instituted a public prosecution, whether the nature of a custody warrant should be changed to a detention warrant again (negative)

[2] The case holding that the number of days of detention after an appeal may be included in the principal sentence in a case where the first instance court rendered a suspended sentence and a sentence of medical treatment and custody and only the defendant appealed

[1] Where a prosecutor decides not to institute a public prosecution against a suspect detained under a detention warrant, and only requests medical treatment and custody, the relevant detention warrant shall be regarded as a custody warrant without losing its validity pursuant to Article 16 of the Social Protection Act, and its nature is changed. However, even if the prosecutor instituted a subsequent prosecution, and the prosecutor instituted a public prosecution against the person detained under a custody warrant, and partly revises the facts constituting the custody warrant, the nature of the custody warrant shall not change to the detention warrant, as there is no special provision.

[2] The case holding that the number of days of detention after an appeal may be included in the principal sentence in light of not only the case where the first instance court sentenced the suspension of execution and medical treatment and custody but also the defendant appealed, but also the case where the effect of the protective custody is limited to the custody application for a new illness, but also the case where the

[1] Article 16 of the Social Protection Act / [2] Articles 16, 20(6), 23(2), and 42 of the Social Protection Act; Article 57 of the Criminal Act; Article 482 of the Criminal Procedure Act

[2] Supreme Court Order 85Mo27 dated August 26, 1985 (Gong1985, 1311)

Defendant and Appellant for Custody

Defendant and Appellant for Custody

An old-age vessel;

Attorney Or-young

Incheon District Court Decision 2003Ra11, 2003Ma362 decided August 14, 2003

All appeals filed by the defendant and the respondent are dismissed.

75 days under confinement before the pronouncement of this judgment shall be included in the original sentence of the original judgment.

1. Summary of grounds for appeal;

A. Defendant case

In light of the various sentencing conditions of the instant case, the sentence of the lower judgment is too heavy.

B. As to custody application cases

In light of the fact that the defendant and the respondent for identification (hereinafter referred to as the "defendant") are not mentally ill persons and the circumstances leading to this case, it cannot be viewed that the defendant is in danger of recidivism.

2. Determination on the grounds for appeal

A. Defendant case

Although the defendant has the same criminal power over several occasions and has committed the instant crime several times, there are unfavorable circumstances, such as the fact that he/she lives alone at the age of 59 (see, e.g., page 73 of the trial record), the confession of the defendant (see, e.g., page 73 of the trial record), the circumstances leading to the instant case are considered, and the degree of damage is not much serious, and it seems that it would be more favorable for the defendant to receive proper treatment than the prison life as shown below, and in light of the various sentencing conditions stipulated in Article 51 of the Criminal Act, the punishment of the court below (one year of suspended sentence in August) is deemed appropriate.

B. As to custody application cases

The risk of recidivism, which is a requirement for medical treatment and custody, refers to a case where there is a considerable probability that the defendant commits a crime again in the state of mental disorder again in the future. The existence of such danger is an act causing the defendant's physical and physical disorder at the time of sentencing, nature of the crime in question, degree of mental and physical disorder at the time of sentencing, degree of difficulty of treatment, degree of environment for continuing treatment in the future, and existence of intent to prevent recidivism by the defendant.

As acknowledged by the evidence duly examined and adopted by the court below, the defendant has the history of receiving mental therapy in the Namdong-gu Incheon Metropolitan City University University Hospital from February 2003 until March 1, 2003. It is true that the defendant committed the crime of this case under lack mental capacity and decision-making ability due to the lack of mental awareness of the first type and lack of mental disorder. In light of the fact that the defendant's physical disorder is a major mental disease requiring continuous treatment, and that the defendant's mental disorder of the first type can only be treated for a long time, and that there is no possibility that the defendant might have been recovered from the above mental disorder of this case, and that there is no mental disorder of this case, and that there is no possibility that the defendant will have been recovered from the above mental disorder of this case, and that there is no mental disorder of the first type and mental disorder of this case, and that there is no possibility that the defendant will have been recovered from the above mental disorder of this case without any mental disorder of this case. In light of the records, it is difficult to view the defendant's mental disorder and mental disorder of this case.

3. Conclusion

(2) Since the court below's appeal against the defendant's case of custody and custody is without merit, the court below's ruling that the defendant's detention warrant should be included in the period of custody under Article 364 (4) of the Criminal Procedure Act and Article 42 of the Social Protection Act (Provided, That the court below's ruling that "the maximum period of custody" of Paragraph (1) 2 and Paragraph (2) 1 of the Criminal Procedure Act should be included in the period of punishment; however, the court below's ruling that the defendant's detention warrant should be included in the period of custody under Article 57 of the Criminal Procedure Act or the detention warrant should not be included in the period of punishment until the date of sentencing. Thus, the court below's ruling that the defendant's detention warrant should be included in the period of punishment for the defendant's remaining under Article 7 of the same Act (see Article 10 of the Criminal Procedure Act, the court below's ruling that the defendant's detention warrant should not be included in the period of punishment for the defendant's remaining in the period of punishment

Judges Jeon Soo-ahn (Presiding Judge)