Treatment when requirements for medical treatment and custody and protective custody are concurrent for mentally ill persons;

According to Article 20(4) of the Social Protection Act, when the requirements for protective custody and protective custody conflict with each other, only a sentence of medical treatment and custody shall be imposed. Thus, even if a person having a record of having the same kind of crime as the one causing the protective custody, even if he/she commits the same offense, he/she shall be mitigated pursuant to Article 10(2) of the Criminal Act, and if he/she is a person subject to protective custody under Article 8(1)1 of the Social Protection Act for committing a crime corresponding to imprisonment without prison labor or heavier punishment

Articles 8(1)1 and 20(4) of the Social Protection Act, Article 10(2) of the Criminal Act

Defendant and Appellant for Custody

Defendant and Appellant for Custody

Attorneys Yellow-sung et al. and one other

Seoul High Court Decision 88No2243,88No197 Decided June 23, 1989

1. Of the judgment below, the appeal against the accused case is dismissed.

30 days of detention after an appeal shall be included in the penalty of the original judgment.

2. Of the judgment below, the part of the protective custody case shall be reversed and remanded to Seoul High Court.

The grounds of appeal by the defendant and the defense counsel of the requester for the custody (hereinafter referred to as the "defendants") are examined.

1. Ground of appeal Nos. 1 and 2

According to the reasoning of the judgment below, the court below acknowledged that the defendant, based on its adopted evidence, had weak ability to discern things or make decisions due to mental or physical disorder at the time of the crime of this case, and that there was a risk of recidivism. In light of the records, the court below's measure is acceptable and it cannot be said that there was an error in the judgment on the mental or physical disorder as pointed out, or that there was an incomplete hearing or a misapprehension of the legal principles on the risk of recidivism, and therefore, there

2. Ground of appeal No. 3

According to the judgment of the court below, the court below held that the defendant's act is an act of a person with a mental disability as defined in Article 10 (2) of the Criminal Act, and the defendant is already sentenced to protective custody prior to the case, and the defendant has already been executed part of the protective custody, and then again commits the crime of this case, which is the same kind as the crime causing protective custody, and has the risk of recidivism, and thereby, he is punished by protective custody

However, since the defendant was mitigated under Article 10(2) of the Criminal Act and was punished by imprisonment without prison labor or heavier punishment, the defendant is a person subject to medical treatment and custody under Article 8(1)1 of the Social Protection Act, and when such person is deemed to be in danger of re-offending, he/she shall be subject to medical treatment and custody. According to Article 20(4) of the same Act, when the requirements for the protective custody and the protective custody conflict with each other, he/she shall only be sentenced to medical treatment and custody. Thus, the court below, despite the fact that the defendant should be subject to medical treatment and custody, has committed an unlawful act of misunderstanding the legal principles of the protective custody under each of the above laws. Accordingly, the part of the judgment below on the grounds that the protective custody cannot be reversed, and therefore

3. Therefore, the appeal against the case pending in the judgment of the court below is without merit, and the thirty days out of the days of detention after the appeal shall be included in the original sentence of the court below, and the part of the custody case shall be reversed and remanded to the court below. It is so decided as per Disposition.

Justices Kim Jong-ju (Presiding Justice)