Whether applicable provisions concerning protective custody may be changed ex officio or not.

It is illegal for the court to apply Article 5 (1) 1 of the Social Protection Act to protective custody claim under Article 5 (2) 1 of the Social Protection Act without changing a protective custody claim according to legitimate procedures.

Article 5 of Social Protection Act

Seoul High Court Decision 82Nu38 decided Apr. 12, 1983 (No. 31 ② 48) (No. 31 ② 48) 82Nu679 decided Apr. 12, 1983 (No. 31 ② 705Gong844 decided Apr. 12, 1983)

Defendant

Defendant

Gwangju District Court of the first instance (85 high-class 11) Mapopool Branch Court of the Gwangju District Court

The defendant's appeal as to the part of the defendant's case is dismissed.

150 days out of the number of days of confinement before the judgment is rendered shall be included in the principal sentence of the original judgment.

Of the judgment below, the part of the custody case is reversed.

A person who is subject to protective custody shall be punished by seven years.

The first point of the grounds for appeal of the defendant is that the court below found the defendant guilty despite the defendant's consent by the victim, which affected the conclusion of the judgment of the court below, and the second point is that the court below's imprisonment with prison labor for a period of one year and six months is too unreasonable.

Therefore, first of all, we examine the mistake of facts, and consider the evidence duly adopted by the court below, it is sufficient to acknowledge the crime at the time of original sale, so the appeal is groundless.

Then, considering the following conditions on the issue of unfair sentencing, the lower court’s punishment cannot be deemed unfair on the ground that the lower court’s punishment cannot be deemed unfair on the grounds that it is inappropriate. Therefore, the above argument on appeal is groundless.

Therefore, the appeal on the part of the defendant's defendant's case is without merit, and thus, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act, and the number of detention days after the appeal is filed pursuant to Article 57 of the Criminal Act shall be included in the sentence of the court below against the defendant.

Despite Article 5 (2) 1 of the Social Protection Act, the applicant for protective custody shall be subject to the application of Article 5 (1) 1 of the Social Protection Act for the reasons for the application for protective custody of the applicant for protective custody by changing the applicable provisions to the extent of the application of the Act, so the court below erred by misapprehending the application of the Act and affecting the conclusion of the judgment.

Therefore, according to the records, although Article 5 (2) 1 of the Social Protection Act is applied to the facts constituting the reason for the request for the custody of public health and custody according to the statement of the written request for the custody of custody, the court below can only recognize the fact that it applied Article 5 (1) 1 of the Social Protection Act to the protective custody for 10 years without changing the indictment in accordance with due process. Thus, the judgment of the court below is erroneous in the misapprehension of the judgment, which affected the conclusion of the judgment. Accordingly, the appeal by the requester for the custody is justified, and the court below should reverse the protective custody case of the court below and decide again by its members.

This is the same as that of the judgment of the court below, and the summary of the evidence is the same as that of the judgment of the court below. Thus, this is accepted by Article 42 of the Social Protection Act and Article 369 of the Criminal Procedure Act.

According to the above facts of recognition, the requester for custody was sentenced to imprisonment without prison labor or a heavier punishment for at least two times for the same or similar crimes as the principal offense and the total term of the punishment is at least three years, and it is recognized that the requester for custody has a risk of repeating a crime by committing a crime of the same kind with imprisonment for life or for at least five years after the execution of the final punishment, and that the requester for custody is subject to protective custody pursuant to Article 5(2)1 of the Social Protection Act.

It is so decided as per Disposition for the above reasons.

Judges Giology (Presiding Judge) Order of Merit