(a) Whether the risk of repeating a crime is excluded from among the requirements for medical treatment and custody of mentally defective persons;

(b) Timing to determine the risk of recidivism, which is a requirement for medical treatment and custody;

A. The Social Protection Act does not stipulate the risk of repeating a crime as a requirement for the custody of a person with mental or physical disability, unlike the case of a person with mental or physical disability. However, it is merely the purport that a person with mental or physical disability does not require separate judgment of danger by deeming the risk of repeating a crime as long as the person with mental or physical disability continues, and it cannot be deemed that

B. The determination of the risk of recidivism, which is a requirement for medical treatment and custody, is not a determination of past facts, but a constructive determination of the future. Thus, the determination of the risk should be based on the time of the judgment on the case for medical treatment and custody claim rather than on the market price of

(a)Article 8(1)1 of the Social Protection Act and the proviso of Article 20(1)1 of the same Act;

Applicant for Custody

Prosecutor

(National Office) Attorney Park Do-young

Daegu High Court Decision 81No280 delivered on February 26, 1982

The appeal is dismissed.

The grounds of appeal are examined.

Medical treatment and custody under the Social Protection Act is a protective disposition for a person who has committed a crime and is deemed to have the risk of re-offending and to require medical treatment. Therefore, it is natural in light of the nature of the disposition.

As for the medical treatment and custody of the mentally handicapped, the Social Protection Act does not stipulate the risk of recidivism as the requirement for the custody of the mentally handicapped person. However, the purport of this is that the risk of recidivism does not require any separate judgment on the risk of recidivism as long as the state of the mentally handicapped person continues to exist, and it does not mean that the risk of recidivism is excluded from the requirement for medical treatment and custody.

In addition, since the judgment on the risk of recidivism, which is a requirement for medical treatment and custody, is not a judgment on past facts, but a family judgment on the future, the judgment on the existence of such risk should be based on the time of the judgment on the medical treatment and custody claim case rather than the market price

As decided by the court below, in the case of a crime of this case on the ground of mental illness in which the requester for a warrantment had no ability to discern things or make decisions, but at the time of the judgment of the court below, if the mental illness was completely cured and the disease was not repeated, and there is no other evidence that the requester for a warrantment had the above mental illness which could cause a new mental disorder, the requester for a warrantment does not pose a risk of re-offending due to mental illness and the claim for medical treatment and custody is groundless in that of the same purport. Therefore, the court below's dismissal of the claim for medical treatment and custody in this case is just and there is no illegality of misunderstanding the legal principles of Social Protection Act, such as the theory of lawsuit,

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating judges.

Justices Jeong Tae-tae (Presiding Justice)