The protective custody period in the case of 50 years of age in the appellate court

Even if a person subject to protective custody becomes 50 years of age when he/she reaches the appellate court, he/she shall be subject to the protective custody seven years of age pursuant to the proviso of Article 5(1) of the Social Protection Act even if the fact subject to protective custody falls under ten years of age

Article 5 (1) of the Social Protection Act

Defendant

Defendant and Appellant for Custody

Busan District Court (Law Firm 82, 931, 82 reduction 160)

The part of the judgment below regarding custody application shall be reversed.

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

The appeal against the accused case shall be dismissed.

140 days out of the number of days of confinement before the pronouncement of this judgment shall be included in the original sentence of the original court.

The gist of the grounds for appeal by the Defendant and the Defendant, the Defendant, and his defense counsel is as follows: first, the Defendant received a deposit of employment from each of the victims of the instant case and received money for employment brokerage, and did not receive the said money by deceiving him, but the lower court convicted the Defendant, which affected the conclusion of the judgment; second, the lower court erred in misunderstanding of facts, which affected the judgment; second, even though the Defendant is currently 50 years old, the lower court committed a violation of law in 10 years of protective custody; third, the lower court's punishment and 10 years of protective custody, which the lower court sentenced against the Defendant, are too unreasonable.

Therefore, in light of the records, the first point of appeal is examined, and the various evidence duly adopted by the court below after examining the evidence, the grounds for appeal claiming mistake of facts can not be accepted, since the court below sufficiently recognizes the facts of each of the crimes of this case and the requirements for custody of the defendant, which are judged by the court below, and then considering the various circumstances, which are the conditions for sentencing such as the defendant's age, character and behavior, environment, criminal records, motive, means, results, etc. of the crime of this case, the punishment of imprisonment of three years against the defendant, which the court below sentenced to, is proper and unreasonable, and the appeal is without merit.

However, according to the records, the defendant is recognized to have reached 50 years of age when he was born on March 20, 1933. Thus, even if the facts requiring custody fall under 10 years of age, the defendant shall be placed under the protective custody for 7 years pursuant to the proviso of Article 5(1) of the Social Protection Act. In this regard, the second ground for appeal is justified. Thus, the judgment of the court below shall not be reversed without going further to the remaining grounds for appeal in the case of protective custody claim.

Therefore, the defendant's appeal against a prosecuted case is without merit, and it is dismissed under Article 364 (4) of the Criminal Procedure Act. Article 57 of the Criminal Act provides that 140 days out of the number of days of confinement prior to the pronouncement of this judgment shall be included in the original sentence of the court below. Meanwhile, since the defendant's appeal against custody claim is with merit, the decision on the issue of unfair sentencing as to the above part is omitted, and the part of the court below's judgment on the claim for custody and custody among the judgment below is reversed and the party members are again decided as follows after pleading.

Article 42 of the Social Protection Act and Article 369 of the Criminal Procedure Act refer to all of the requirements of custody and custody of the defendant recognized as a member of the party and the summary of the evidence as stated in the relevant column of the judgment below.

According to the facts stated in the law, since the defendant was sentenced to imprisonment without prison labor or a heavier punishment for at least three times in a crime of fraud and was sentenced to imprisonment with prison labor or a heavier punishment for at least five years in total, and has committed the same kind of crime corresponding to the same crime corresponding to imprisonment with prison labor for at least seven years again within three years after the execution of the final sentence is completed, the defendant is subject to punishment for 10 years in a protective custody pursuant to Article 5 (1) 1 of the Social Protection Act, or as seen in the above grounds for reversal, as the defendant reaches 50 years of age in a criminal trial, the defendant is subject to punishment for seven years

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

Judges KimHun-Un (Presiding Justice)