In case of necessary protective custody, the legality of a trial without a defense counsel;

Article 5 (1) of the Social Protection Act does not appoint a defense counsel for protective custody claim, but the procedure for a trial without a defense counsel is illegal.

Article 21(2) of the Social Protection Act, Article 282 of the Criminal Procedure Act, Article 283 of the Criminal Procedure Act

[Plaintiff-Appellant] 19 July 19, 1966, 66Do577 (Supreme Court Decision 3683 delivered on July 19, 196, Supreme Court Decision 14B-33 delivered on Supreme Court Decision 282(5)1435 of the Criminal Procedure Act)

Defendant

Busan District Court (Supreme Court Decision 81Gohap460, 81Sang79)

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than one year and six months.

The sixty-five days of detention days prior to the pronouncement of the judgment below shall be included in the above sentence.

The seized Rabba (No. 1 to 3) shall be confiscated from the defendant, respectively.

A requester for protective custody shall be punished by ten years.

The summary of the grounds for appeal by the defendant and the respondent for identification (hereinafter referred to as the "defendant") is that even though the defendant was in a state of mental disorder under the influence of alcohol at the time of the crime in this case, the court below erred and affected the judgment, and even if it is not so, the court below's punishment is too unreasonable, and the court below's decision is unfair to put the requester for identification in a protective custody of 10 years.

Before the judgment on the grounds for appeal above, Article 21(2) of the Social Protection Act provides that the provisions of Articles 282 and 283 of the Criminal Procedure Act shall apply mutatis mutandis to the case of custody claim of the person stipulated in the main sentence of Article 5(1). Since the prosecutor requests the protective custody of the person under custody by applying the provisions of the main sentence of Article 5(1) of the Social Protection Act, the examination of the person under custody shall not be conducted without the presence of the counsel pursuant to Article 283 of the Criminal Procedure Act, although the court below did not appoint a public defender for the person under custody, and the court below shall not dismiss the reversal in this respect since the court below's deliberation of the case without the defense counsel violates the provisions of the Social Protection Act and the Criminal Procedure Act.

Therefore, the judgment of the court below is reversed in accordance with Article 364(2) and (6) of the Criminal Procedure Act, and it is again decided after pleading.

On February 18, 1966, the defendant-appellant and the defendant-appellant were sentenced to imprisonment with prison labor for the theft of military supplies and escape from military service; one year from imprisonment with prison labor for the theft of military supplies at night at the Seoul District Criminal Court on April 23, 1970; three years from imprisonment with prison labor for the larceny, escape from military service without permission at the Army, High Military Court on July 18, 1972; one year and six months from January 21, 1976; and one year and six months from imprisonment with prison labor at the Incheon District Court's branch of Incheon District Court on January 15, 1979; on November 15, 1979, the person who was sentenced to 10 months from imprisonment with prison labor for the theft of military supplies at the Busan District Court on August 6, 1980; the person who completed the execution of the sentence on April 15, 1981; and the person who was located in the Busan District Court on April 20, 198.

The remaining facts of the judgment, except for each previous conviction, shall not be

1. Statement consistent with the facts stated in the court of the defendant;

1. Each statement that conforms to the facts stated in the judgment among the suspect interrogation records of each accused in the preparation of administrative affairs by prosecutors and judicial police officers;

1. Statements consistent with the judgment in the records of statement made by the judicial police officer with the victims involved in the preparation of administrative affairs;

1. Recognizing the existence, etc. of one copy (No. 1 to No. 3) seized as a whole;

Each previous conviction in the judgment

1. The facts of the judgment can be recognized by the notice of criminal records against the defendant prepared by the third head of the Public Security Headquarters, and the entries of the non-indicted in the Busan District Public Prosecutor's Office's assistant's assistant written judgment.

The judgment below of the defendant corresponds to Article 330 of the Criminal Act. Since the defendant was guilty of the crime of intrusion upon residence in the judgment that constitutes a repeated crime, the defendant shall be punished by imprisonment with prison labor for not less than one year and six months within the scope of a repeated crime under Article 35 of the same Act. Pursuant to Article 57 of the same Act, 65 days of the detention days before the sentence is included in the above sentence, and one copy (No. 1 through 3) is seized in accordance with Article 57 of the same Act. Since the defendant was provided for the crime of this case and falls under the ownership of a person other than the defendant, the defendant shall be confiscated from the defendant in accordance with Article 48 (1) 1 of the same Act. Since the defendant was sentenced to imprisonment without prison labor or heavier punishment for not less than three years in total, and the defendant was sentenced to imprisonment with prison labor or similar punishment for not less than 7 years within 3 years after the execution of the last sentence of the crime of intrusion upon residence in the judgment below, the defendant under protective custody under Article 10 (1).

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

Judges Ahn Yong-chul (Presiding Judge) (Presiding Justice)