Where an indeterminate sentence is pronounced, "a sentence" under Article 5 (2) 1 of the Social Protection Act;

The term "a prison term" under Article 5 (2) 1 of the Social Protection Act shall be deemed to be a prison term in the event that an indeterminate sentence is sentenced under Article 54 (1) of the Juvenile Act.

Article 5 of the Social Protection Act, Article 2 subparagraph 3 of the Enforcement Decree of the Social Protection Act

Defendant and Appellant for Custody

Attorney-at-law (Korean)

Seoul High Court Decision 81No2780,81No401 Decided November 20, 1981

The appeal against the accused case shall be dismissed.

70 days, out of the number of days pending trial after appeal, shall be included in the principal sentence.

The first instance court and the judgment below on the custody claim are reversed, and the prosecutor's request for protective custody is dismissed.

1. The defendant and his defense counsel's grounds of appeal are examined.

Examining the evidence cited in the judgment of the court of first instance maintained by the court below and the records, it is sufficient to acknowledge the criminal facts against the defendant in the judgment of the court of first instance as to the recognition of the court of first instance, and it is not recognized that there is an error of law by violating the rules of evidence or misunderstanding the facts by neglecting the deliberation as argued in the process of recognition.

2. According to the judgment of the court of first instance maintained by the court below, the requester for custody shall be punished by applying Article 2(2) of the Social Protection Act to protective custody for the reason that the requester for custody was committed habitually larceny on February 16, 1978, with the same crime as habitual larceny on October 20, 1979, and with the same crime as the same crime on January 15, 1980, with the Daejeon District Court sentenced each short-term eight months of imprisonment, a long-term one year of imprisonment in the Daejeon District Court, and the execution of the sentence was completed, and there is a risk of recidivism by committing habitual larceny on November 18, 198.

However, Article 5 (2) 1 of the Social Protection Act provides that a person who has been sentenced to imprisonment without prison labor or heavier punishment for two or more times for the same or similar crimes and has a risk of recidivism shall be sentenced to the seven-year protective custody. According to Article 2 subparagraph 3 of the Enforcement Decree of the above Act, in calculating the above term of punishment, where a person is sentenced to an irregular term of punishment pursuant to Article 54 (1) of the Juvenile Act in the calculation of the above term of punishment, the short term of punishment shall be limited to two years (24 months) including the short term of punishment. Thus, this case where a person subject to protective custody in the original term of punishment does not find any criminal record other than the previous term of punishment as indicated in the record does not constitute the requirement of protective custody under Article 5 (2) 1 of the above Act, and even if it is clear that the term of imprisonment does not meet the requirement of protective custody disposition, the court below maintained the judgment of the court of first instance and the judgment of the court below that maintained the above legal requirement of protective custody.

Therefore, the appeal against the above criminal defendant in the judgment of the court below is dismissed, and the 70 days out of the number of days of pre-trial detention after the appeal shall be included in the principal sentence by applying Article 57 of the Criminal Act to the case of pre-trial detention. The judgment of the court of first instance and the judgment of the court below shall be reversed with respect to the case of pre-trial detention claim, and it shall be decided directly by Article 396 of the Criminal Procedure Act as it is deemed sufficient to judge

The summary of this case's claim for protective custody is identical to the facts stated in the judgment of the court of first instance, and according to these facts, it does not meet the requirements for protective custody under Article 5(2)1 of the Social Protection Act as explained in the above reasons for reversal.

Therefore, since the prosecutor's request for protective custody is groundless, the claim of this case is dismissed in accordance with Article 20 of the same Act.

It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kang Young-young (Presiding Justice)