The case holding that the risk of recidivism is not recognized as a requirement for protective custody under Article 5 (2) 1 of the Social Protection Act

Even though a person who has been sentenced one time to the Juvenile Department in the form of larceny, etc. and five times of punishment, and is recognized as habituality of larceny, he/she has been faithfully living without committing any criminal act for about four years after the execution of the last sentence, and married with his/her wife and consciousness, and had a certain address. If the person who filed the petition for the warrant of the warrant of the warrant of the warrant of the warrant of the warrant of the warrant of the warrant of the warrant of the victim of the crime was found to have committed a temporary mistake in depth in order to prepare travel expenses that fall short of the motive of the crime, it cannot be recognized that there is a risk

Article 5(2)1 of the Social Protection Act, Article 20 of the Social Protection Act

Supreme Court Decision 81Do316, 81Do104 Decided February 23, 1982

Defendant

Prosecutor and Defendant

Seoul District Court Vice Branch (81 High Court Decision 290, 81 High Court Decision 54)

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than one year and six months.

One hundred-five days of detention days prior to the pronouncement of the original judgment shall be included in the above sentence.

The claim for protective custody of this case is dismissed.

Of the summary of the grounds for appeal by the defendant and the defendant-appellant (hereinafter referred to as the "defendants"), the first point of the appeal by the defendant and the defendant is a person who has no habit of larceny, and the court below recognized and aggravated punishment against the defendant. The court below erred by misunderstanding the facts or misunderstanding the legal principles as to the habituality of larceny, thereby affecting the conclusion of the judgment. The second point of the judgment below and the summary of the grounds for appeal by the defendant have a certain residence and family, occupation, occupation, and this crime was committed temporarily. In the future, the court below erred by misunderstanding that the defendant did not repeat a crime, and the court below committed a protective custody disposition due to the danger of repeating a crime against the defendant, which affected the conclusion of the judgment. The summary of the grounds for appeal by the prosecutor is unjust because the judgment of the court below against the defendant is too unfolded.

Therefore, the first ground for appeal by the defendant was examined in light of the records of this case. In light of the first ground for appeal by the defendant, since February 10, 1969 to July 1, 1975, the defendant was sentenced five times as punishment for the same kind of larceny and completed the punishment, and the fact that the defendant committed the principal crime under the Retail System Act again at once again, it can be recognized that the defendant has a habit of larceny. Therefore, the appeal is without merit.

The following facts are examined as to the grounds for appeal No. 2 and the grounds for appeal of the defendant. The court below: the defendant was sentenced to imprisonment without prison labor or heavier punishment for the same or a similar crime more than two times, and the defendant again commits a crime of the same kind, which constitutes death penalty, life imprisonment, or imprisonment with or without prison labor for not less than five years; and thus, the defendant is under protective custody pursuant to Article 5(2) subparag. 1 of the Social Protection Act, on the premise that there is a risk of recidivism; although the defendant was under protective custody pursuant to Article 5(2) subparag. 1 of the Social Protection Act, five times or more, and the total term of punishment is three years or more, and the defendant was found to have been guilty of the crime of this case without prison labor or heavier punishment for the same or similar crime; the risk of recidivism cannot be established immediately because the defendant was found to have been guilty of the crime of this case, on the ground that there was a lack of sufficient time and risk of recidivism between the defendant and the defendant's remaining prison prison life before committing the crime of this case.

However, the judgment of the court below that ordered a protective custody disposition against the defendant on the ground that the defendant is dangerous to repeat a crime is erroneous in the misapprehension of legal principles as to the risk of repeating a crime, which affected the conclusion of the judgment.

Therefore, the court below's decision is reversed in accordance with Article 364 (6) of the Criminal Procedure Act and Article 42 of the Social Protection Act, and the court below's decision is reversed and decided again by its members.

around July 1975, the Defendant was sentenced to two years of imprisonment for attempted larceny at the Seoul District Criminal Court, and was in prison in the Ansan prison on June 3, 1977, and was in the same criminal record four times on or around June 19, 197, and was habitually sentenced to four times on or around August 19, 1981, the Defendant cut off 13,000 won of money at the market price of 200 won or more of the market price, which included 13,000 won or more of cash owned by the said victim, that was placed in a temporary bus stop at the bus stop located in the Gangnam-gu Seoul Metropolitan City on or around August 19, 1981.

The criminal facts of the defendant recognized as a party member and the summary of the evidence are as shown in the evidence column of the judgment of the court below, and all of them are cited in accordance with Article 369 of the Criminal Procedure Act.

The court below's judgment corresponds to Articles 5-4 (1) and 329 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 329 of the Criminal Act, and Article 53 and Article 55 (1) 3 of the Criminal Act, since there are extenuating circumstances, such as the defendant's selection of a prescribed limited term of punishment, and the defendant's misunderstanding after committing the crime, it shall be mitigated by discretionary mitigation pursuant to Articles 53 and 55 (1) 3 of the Criminal Act, and the defendant shall be punished by imprisonment and six months within the scope of the term of punishment, and Article 57 of the same Act

Of the facts charged of this case, the defendant's statement as to non-indicted 3 prepared by the judicial police officer's non-indicted 3, who habitually admitted the defendant in the above bus at around 10:30 on May 5, 1981, in light of the defendant's statement of statement as to the non-indicted 3, who is habitually parked in the bus stop at the bus stops located in Gangnam-gu Seoul, Gangnam-gu, Seoul, Seoul, which is located in the right side of the victim non-indicted 3 within the city bus No. 5 company No. 2809, 36 on May 5, 1981, the defendant taken away the 150,00 won of cash owned by the victim non-indicted 3, who was placed in the right side of the victim non-indicted 3, and there is no evidence to prove the crime of larceny as to the crime of larceny and there is no other evidence to prove the crime of larceny under the latter part of Article 35 of the Criminal Procedure Act.

The gist of the prosecutor's claim for protective custody of this case is "the defendant is sent to the family court for larceny at the Seoul District Criminal Court on September 26, 1966, and on February 10, 1969, at the same court on March 27, 1970, the same court on September 10 and September 10, 1971, and the same court on September 13, 1971 had been sentenced to imprisonment of 2 years for the same crime and 2 years for the same crime in the same court on June 13, 1975. The defendant was sentenced to imprisonment of 2 years for the crime of larceny in the Gyeyang Prison and was sentenced to imprisonment of 2 years for the crime of larceny at the same court on June 3, 1977. The defendant's claim for appeal of this case is dismissed as there is no evidence supporting the risk of recidivism in the society's second protective custody.

It is so decided as per Disposition for the above reasons.

Judge final (Presiding Judge) Kim Jong-dae et al.