Whether a protective custody claim can be dismissed for a person who satisfies the requirements of Article 5(1) of the Social Protection Act (negative)

The Social Protection Act is subject to a protective order under Article 5(1) or (2) or without being subject to a protective order under Article 5(1) or 5(2), but in the case of paragraph (1), it is not necessary to separately prove the risk of recidivism since it is deemed that there is a risk of recidivism as long as the requirements are met. Thus, it is not possible to deny the risk of recidivism on the ground that the risk of recidivism is not recognized.

Article 5 (1) of the Social Protection Act

Applicant for Custody

Prosecutor

Attorney Doh-man

Daegu High Court Decision 82No821, 82No209 delivered on August 27, 1982

Of the judgment below, the part concerning protective custody claim is reversed, and the case is remanded to the Daegu High Court.

We examine the prosecutor's grounds of appeal.

1. According to the reasoning of the judgment below, the court below held that Article 5(1) of the Social Protection Act does not stipulate the risk of re-offending as the requirement of re-offending does not require a separate judgment on the risk of re-offending as long as the risk of re-offending meets the requirements stipulated in such provision, and that the risk of re-offending is not excluded from such requirement. The requester for re-offending of this case is recognized as having committed the crime of this case by contingency, and there is no other evidence to deem the defendant as having the risk of re-offending. Thus, the requester for re-offending of this case’s claim for protective custody on the ground that it falls under Article 5(1)1 of the Social Protection Act, and therefore

2. Examining the contents of Article 5(1) of the Social Protection Act, while Article 5(2) of the same Act provides that a protective disposition is not a requirement to recognize the risk of recidivism, a protective disposition under Article 2(2) provides that a person who commits an offense and is deemed to have the risk of recidivism and require special education and medical treatment shall be subject to the protective disposition (see Article 1 of the same Act), there is no doubt that there is no provision regarding a protective disposition under Article 5(1) of the same Act or Article 5(2) of the same Act.

However, as long as Article 5 (1) of the same Act satisfies the previous convictions and the requirements for recidivism, it is interpreted that there is a risk of recidivism, as a matter of course, and it does not separately stipulate the requirements for the recognition of the risk of recidivism. Therefore, it is not necessary to prove the risk of recidivism to a person who meets the requirements for the previous convictions and the requirements for the recidivisms, and it is not allowed to deny the risk of recidivisms by citing it and reflects.

Therefore, the judgment of the court below dismissing the claim on the ground that it is not recognized that the risk of recidivism is not recognized as to the person subject to protective custody claim under Article 5 (1) of the Social Protection Act, which is the subject of protective custody claim, is erroneous in the misunderstanding of legal principles on the risk of recidivism of the subject of protective custody under Article 5 (1) of the same Act

3. Therefore, the part of the judgment below regarding protective custody claim is reversed, and the case is remanded to the Daegu High Court. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Lee Sung-soo (Presiding Justice)