Whether a person subject to protective custody for habitual larceny commits a special larceny under Article 5(1) of the Act on the Punishment of Sexual Crimes and Protection of Victims thereof, constitutes a protective custody requirement under Article 5 subparag. 3 of the Social Protection Act (affirmative)

Where a person who is sentenced to protective custody for committing a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes commits a special larceny under Article 5 (1) of the Act on the Punishment, etc. of Sexual Crimes and the Protection of Victims, the above crime shall be deemed a crime under Article 5 of the Social Protection Act pursuant to Article 17 of the same Act, and the crime under Article 6 (2) 6 of the Act on the Punishment, etc. of Sexual Crimes and the Protection, etc. of Victims falls under the protective custody requirement under Article 5 (3) of the Social Protection Act, considering the nature of the crime, the means, method, and type of the crime.

Articles 5 subparag. 3 and 6(2)6 of the Social Protection Act; Articles 5(1) and 17 of the Act on the Punishment of Sexual Crimes and the Protection of Victims; Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes;

Applicant for Custody

Prosecutor

Attorney Park Jin-hoon

Seoul High Court Decision 2002No85 delivered on September 5, 2002

Of the judgment below, the part of the custody case is reversed, and that part of the case is remanded to Seoul High Court.

The court below found the defendant of this case guilty of committing the crime of larceny under Article 331(2) of the Criminal Act and the crime of rape under Article 297 of the Act on the Punishment, etc. of Specific Crimes, etc. of Specific Crimes, which is a combination of special larceny under Article 331(2) of the Criminal Act and the crime of rape under Article 297 of the Act on the Protection, etc. of Victims, and does not constitute the crime of rape under Article 5 of the Social Protection Act, and since the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, which is a previous criminal offense of the defendant of this case, cannot be deemed as the same or similar crime under Article 6(2) of the Social Protection Act, and the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, which is a previous criminal offense of the defendant of this case, cannot be deemed as the crime of larceny under Article 6(2) of the Social Protection Act and the crime of rape under Article 5 of the Social Protection Act.

However, the crime of the defendant's case which became guilty of the defendant's committing a special larceny is a crime of rape committed by the person who committed the crime of rape. The crime is a crime falling under Article 5 (1) of the Act on the Punishment of Sexual Crimes and Protection of Victims thereof. The crime of this crime is a crime stipulated in the attached Table of Article 5 of the Social Protection Act pursuant to Article 17 of the same Act. The crime of this case and the violation of the Act on the Punishment of Sexual Crimes and Protection of Victims, etc. of Specific Crimes, which the person who committed the crime of this case was sentenced to protective custody, such as the defendant's case, constitutes the same or similar crime as defined in Article 6 (2) 6 of the Social Protection Act when considering the nature of the crime, the means, methods, and types of the crime. Thus, the court below erred by misapprehending the legal principles on the requirements of protective custody, which affected the conclusion of the judgment. Therefore, the ground of appeal assigning this error is justified.

Therefore, this part of the judgment below is reversed and remanded to the court below for further proceedings consistent with this Opinion.

Justices Zwon (Presiding Justice)