The meaning of "where the name of crime is the same" under Article 6 (2) 1 of the Social Protection Act.

Article 6 (2) 1 of the Social Protection Act refers to a specific criminal name provided for in the Criminal Act or any Act other than the Criminal Act. Therefore, only the name of a crime of violation of the Punishment of Violences, etc. Act and the name of a crime provided for in Article 6 (2) 1 of the same Act cannot be readily concluded as a crime of the same kind or a similar crime.

Article 6 (2) 1 of the Social Protection Act

Supreme Court Decision 81Do342,81Gado158 Decided March 23, 1982, 82Do1615, 82Gado333 Decided September 28, 1982

Defendant and Appellant for Custody

Defendant and Appellant for Custody

Attorney Park Jin-chul

Daegu High Court Decision 88No269,88No19 delivered on September 14, 1988

The appeal against the accused case shall be dismissed.

The period of detention pending trial after an appeal shall be included in the principal sentence for forty days.

The part of the judgment of the court below concerning protective custody is reversed, and that part of the case is remanded to the Daegu High Court.

1. We examine the Defendant and the state appointed defense counsel’s grounds of appeal regarding the accused case.

In light of the records of the judgment of the court of first instance maintained by the court below and the judgment of the court of first instance, the fact-finding of the court below is acceptable.

Furthermore, examining the reasoning of the judgment of the court below and the judgment of the court of first instance maintained by the court below, the first instance rejected the defendant's assertion that the defendant was in a state of mental disorder under the influence of alcohol at the time of the crime of this case, and the court below rejected the defendant's appeal that the defendant was in a state of mental disorder at the time of the crime of this case due to a traffic accident after the death of this case, the judgment of the court of first instance and the judgment of the court of first instance are acceptable, and there is no error of law by misapprehending the legal principles of Article 10 of the Criminal Act, such as incomplete deliberation

Therefore, the appeal regarding the accused case shall be dismissed, and part of the detention days after the appeal shall be included in the principal sentence.

2. Regarding protective custody cases:

ex officio, the name of "where the name of a crime is the same" under Article 6 (2) 1 of the Social Protection Act refers to the name of a specific crime provided for in the Criminal Code or the law other than the Criminal Code. Thus, it cannot be readily concluded that only the name of a crime violating the Punishment of Violences, etc. Act is the same and the name of a crime provided for in Article 6 (2) 1 of the same Act is the same as that of a crime (see Supreme Court Decision 81Do342, 81Do158, Mar. 23, 1982; 82Do1615, 82Do333, Sept. 28, 1982).

However, in comparison with the first instance judgment maintained by the court below, the name of the crime in this case is in violation of the Punishment of Violences, etc. Act or its contents, and the criminal records alleged by the first instance court as the same or a similar crime is in violation of the Punishment of Violences, etc. Act, although the name of the crime in this case includes all the criminal records, the specific crime is intimidation, and the crime is committed on Oct. 4, 1985, which was sentenced on Oct. 2, 198. Thus, such crime cannot be deemed as belonging to the same or a similar crime, considering the nature of the crime in this case, the means and method of the crime in this case, and the tendency and type of the crime, etc., it cannot be acknowledged that it belongs to the same or a similar crime. Accordingly, the court below's decision that ordered the defendant to protective custody pursuant to Article 5 (1) 1 of the Social Protection Act is erroneous in the misapprehension of legal principles of the Social Protection Act, which affected the judgment, and thus, the part of the court below's judgment is reversed ex officio.

3. It is so decided as per Disposition by the assent of all participating judges.

Justices Ansan-man (Presiding Justice)