[1] Requirements for protective custody under Article 5 subparagraph 1 of the Social Protection Act

[2] The case reversing the judgment of the court below on the ground that a person who was not prosecuted for habitual crimes cannot be subject to protective custody

[1] Article 5 subparagraph 1 of the Social Protection Act provides that a person who has been sentenced to imprisonment without prison labor or a heavier punishment for at least two times for the same or a similar crime shall be sentenced to protective custody if the person who has been sentenced to a total of three years or more for the same or a similar crime is recognized to have committed a crime of the same or a similar crime again after having been sentenced to the execution of the final sentence in whole or in part, or exempted from the punishment, and that a person shall be sentenced to protective custody if he/she committed a crime of the same or a similar crime, and subparagraph 2 of the attached Table provides that a crime of the same Article shall be limited to an attempted crime of Articles 2 (1), 3 (3), and 6 (limited to an attempted crime of Articles 2 (1) and 3 (3)) in the case of a violation of the Punishment of Violences, etc. Act. Thus, even if the criminal record falls under the same or a similar crime, such crime does not meet the requirements of protective custody requirement."

[2] The case reversing the judgment of the court below on the ground that a person who was not prosecuted for a habitual crime cannot be punished with protective custody on the ground that he cannot be punished with protective custody on the ground that he cannot be punished for a habitual crime under Article 2 (1) of the Punishment of Violences, etc. Act, even if such habitual crime is recognized as habitual crime under Article 2 (1) of the same Act without the prosecutor'

[1] Article 5 subparag. 1 and [Attachment] 2 of the Social Protection Act / [2] Article 5 subparag. 1 and [Attachment] 2 of the Social Protection Act, Article 2(1) of the Punishment of Violences, etc. Act

[1] [2] Supreme Court Decision 93Do86 delivered on October 12, 1993 (Gong1993Ha, 3123) / [2] Supreme Court Decision 89Do582 delivered on June 13, 1989 (Gong1989, 1103)

Defendant

Applicant for Custody

Defendant and Appellant for Custody

Attorney present Hong-ju et al.

Seoul High Court Decision 95No2456, 95No137 delivered on December 11, 1995

The part of the judgment of the court below against the defendant and the respondent for identification are reversed, and the part of the case is remanded to the Seoul High Court.

We examine ex officio.

For the Defendant

According to the records of this case, when the prosecutor took part in the indictment as a member of the acting group of the "Cheongsung Pace" in the previous indictment and took part in the activities of the defendant, and the organization was formed due to arrest of the head of the Acceptance, etc., the prosecutor stated the facts charged that the above defendant took part in the act group around May 1993 at the initiative of the co-defendant of the court below, and continued dispute as to whether the crime group was newly organized by the "Cheong Pace Pace Pace Pace Pace Pace" at the court below, and submitted an application for changes of indictment as of November 27, 1995, and submitted an application for changes of indictment as of November 27, 1995 to the effect that the above co-defendant of the court below took part in the "Cheong Pace Pace Pace Pace PaP" and it is clear that the above part of the indictment was changed to the above defendant's act as a member of the organization of the above crime group.

However, the court below maintained the judgment of the court of first instance by dismissing both the prosecutor and the defendant's appeal without examining and determining the changed facts charged. Thus, the court below's decision on this part is erroneous in the misapprehension of legal principles as to the modification of indictment or the subject of the trial, and thus

Meanwhile, according to the records of this case, the court of first instance, in addition to the sentence of imprisonment for a maximum term of 8 months or for a short term of 6 months, sentenced to the punishment for violence in addition to the sentence of imprisonment for a maximum term of 10 months or for a short term of 8 months, and sentenced to the punishment for a short term of 120 days among the detention days prior to the sentence, committed an unlawful act that did not state whether to include one of the two sentences in the calculation of one sentence or both, should be included in the calculation of one sentence, but the court below dismissed the appeal by excessive calculation. Thus, the judgment of the court below should be reversed in its entirety since it cannot be maintained any more in this respect

As to the requester for custody:

According to the reasoning of the judgment below in this part, the court below acknowledged the risk of re-offending in light of the motive of each of the crimes of this case, the criminal records up to the crime, and the habitual nature of violence, the means and circumstances after the crime, the occupation, family relation, educational degree, personality and conduct, etc. of the above requester, in judging the grounds for appeal by the requester for the warranting warranting warranting warranting warranting warranting warranting the risk of re-offending. The above requester was sentenced to imprisonment without prison labor or more for the same crime as the crime of this case at least two years, and the above requester was sentenced to imprisonment without prison labor or more for the same crime as the crime of this case for three years or more, and the same crime of this case is committed again after the execution of the final sentence, and the risk of re-offending is recognized to exist, and therefore the court shall take protective custody disposition as provided in Article 5 subparagraph 1

Article 5 subparagraph 1 of the Social Protection Act provides that a person who has been sentenced to imprisonment without prison labor or heavier punishment for the same or similar crime more than two years in total shall be sentenced to protective custody if he/she has committed a crime of the same or similar kind of crime again after having been sentenced to the execution of all or part of the final sentence or exemption from the punishment, and if he/she is found to be in danger of recidivism, he/she shall be sentenced to protective custody. Article 2 (1), 3 (3), or 6 (limited to an attempted crime under Articles 2 (1) and 3 (3)) of the Punishment of Violences, etc. Act. Thus, even if the criminal record and prosecuted crime of the requester for protective custody constitute a crime of the same or similar kind, such crime cannot satisfy the requirements of protective custody. Article 2 (1) of the Punishment of Violences, etc. Act provides that a public prosecution crime meets the requirements of each of the above Articles only when he/she committed a crime of the same or similar crime under Article 2 (1) of the same Act habitually, by force of an organization or group or group collectively.

However, according to the indictment of this case and the written application for changes in the indictment of each case, the facts charged of this case as to the above requester for protective custody and the reasons for the request for protective custody do not clearly mean that he jointly committed rapion, assault, or damage to property with the co-defendants at night or with co-defendants, and they do not prosecute him for habitual crimes. Thus, even if it is acknowledged that the above requester for protective custody has habitual nature as prescribed in Article 2 (1) of the Punishment of Violences, etc. Act, the above requester for protective custody cannot be punished for habitual crimes as prescribed in Article 2 (1) of the above Act without changing the prosecutor's facts charged. Thus, the judgment of the court below is erroneous in the misapprehension of legal principles as to the requirements for protective custody, and it cannot be exempted

Therefore, the part of the judgment of the court below against the defendant and the requester for custody are reversed, and the part of the case is remanded to the court below. It is so decided as per Disposition with the assent of all Justices who reviewed the appeal.

Justices Kim Jong-soo (Presiding Justice)