A. The Ministry of Justice’s change in the claim for protective custody

B. Whether an exchange change in protective custody claim is permissible in an appellate trial

A. The essence of the protective custody punishment is different from that of the protective custody punishment. However, the result that the protective custody requester restricts the physical freedom due to the protective custody disposition does not actually differ from the case of the punishment, and it contributes to the discovery of substantial truth by coping with the dynamic nature of the trial, and at the same time, the necessity that facilitate the defense preparation of the requester for the protective custody by clearly limiting the object of the trial is no different from that of the criminal trial. Thus, even if Article 298 of the Criminal Procedure Act on the Amendment to Bill of Indictment System prepared for the same purport applies mutatis mutandis to the protective custody trial, the modification of the claim is allowed, and it is reasonable to apply Article 298 of the Criminal Procedure Act mutatis mutandis to the requirements and procedures for the modification.

B. As long as a protective custody claim has already been issued prior to the judgment of the court of first instance, even if the court of appeal changes it in exchange, the basic facts of the case where the degree of change does not reach the degree of harm to the identity of the fact causing the claim is deemed already deliberated in the court of first instance. Thus, it is not a deprivation of the interests of the court of first instance of the requester subject to protective custody, and thus, it cannot be deemed that the exchange change in the protective custody claim is not allowed in the appellate court.

(a)Article 42 of the Social Protection Act, Article 298 of the Criminal Procedure Act, Article 14(3) of the Social Protection Act;

Defendant and Appellant for Custody

Prosecutor

Attorney Doh-chan

Gwangju High Court Decision 87No371,87No41 decided October 2, 1987

Of the judgment below, the part of protective custody claim shall be reversed, and this part of the case shall be remanded to the Gwangju High Court.

The prosecutor's remaining appeals are dismissed.

The grounds of appeal are examined.

According to the reasoning of the judgment below, the court below held that the prosecutor's change of the protective custody claim under Article 5 (2) 1 of the Social Protection Act into the protective custody claim under Article 5 (1) 1 of the same Act at the appellate court, the appellate court, the appellate court's ruling, to change the protective custody claim under Article 5 (2) 1 of the same Act to the protective custody claim under Article 5 (1) 1 of the same Act, the social protection law is strict in terms of the legislative intent of the Social Protection Act, the requirements, procedures, and timing of the request for protective custody, and in particular, the relevant provisions with the Criminal Procedure Act cannot be allowed for the ground for the protective custody claim under Article 298 of the Social Protection Act, or for the change of the applicable provisions to the protective custody claim under Article 298 of the Criminal Procedure Act, even if it is possible to interpret that Article 5 (2) 1 of the Social Protection Act applies mutatis mutandis under Article 42 of the same Act to the protective custody claim under Article 5 (1) of the same Act.

However, the essence of the protective custody is different from that of the protective custody, so the Social Protection Act provides various provisions different from the Criminal Procedure Act regarding the requirements, procedures, and timing of the protective custody request. However, since the result of the protective custody request restriction is no different from that of the protective custody request, the Social Protection Act allows the requester for protective custody to concurrently deliberate and decide with the criminal defendant case premised on the review and trial of the protective custody request in principle, and except as otherwise provided in the same Act, Article 42 provides that the Criminal Procedure Act shall apply mutatis mutandis to the case within the scope not contrary to its nature, except as otherwise provided in the same Act, to contribute to finding substantial truth by coping with the dynamic and developmental nature of the trial, and at the same time, the necessity of facilitating the defense preparation of the requester for protective custody by clearly limiting the object of the trial at the same time does not coincide with the criminal trial in the case of the protective custody trial. Thus, even if Article 298 of the Criminal Procedure Act on the amendment system prepared to the same purport does not violate the judgment of protective custody.

In addition, Article 14(3) of the Social Protection Act is interpreted to prevent the deprivation of the interests of the tier of the requester for protective custody in relation to the claim for protective custody. As long as the request for protective custody had already been made before the judgment of the court of first instance, it shall be deemed that the court of first instance has already been deliberated on the basic facts unless the degree of modification does not reach the degree of harm to the identity of the facts causing the claim. Thus, it is not a deprivation of the interests of the tier of the requester for protective custody. Thus, it shall not be deemed that the exchange change in the claim for protective custody is not allowed in the appellate court. Further, even if the necessary protective custody and discretionary protective custody differ in the effect of the requirement, it is only a ground for not recognizing the protective custody different from the contents of the request without changing the protective custody claim, and it shall not be deemed the ground for allowing the change itself to permit the change in the claim for protective custody. Thus, even if the change to the claim for protective custody is changed to the contents disadvantageous to the respondent.

However, the court below denied the effect of the prosecutor's modification of protective custody claim of this case on the ground as above, because it erred by misapprehending the legal principles on the modification of protective custody claim of this case, which affected the conclusion of the remaining judgment. Therefore, it is reasonable to point this out.

In addition, the prosecutor also filed an appeal against the part of the defendant's case of this case, but this part of the appeal was not legitimate within the submission period of the appellate brief, and the appeal is groundless.

Therefore, the part of the judgment below regarding protective custody claim is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The prosecutor's remaining appeals are dismissed. It is so decided as per Disposition by the assent of all participating judges.

Justices Lee B-soo (Presiding Justice)