Cases where the risk of recidivism under Article 5 (2) 1 of the Social Protection Act is not recognized.

During two years and four months after the completion of the final punishment, there is no risk of recidivism in the case of a assault offender who has been in operation of a bicycle repair shop and has committed assault to the defendant who is a child paralysis first, thereby causing a contingent crime.

Article 5 (2) 1 of the Social Protection Act

Defendant

Prosecutor and Defendant

Seoul District Court Decision 81 Gohap418, 81 High Court Decision 82)

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for two years.

The sixty days from the detention days before the sentence of the judgment below shall be included in the above sentence.

The custody claim of this case is dismissed.

The gist of the grounds for appeal by the prosecutor is that the defendant and the respondent for detention (hereinafter referred to as the "defendants") have to be deemed to pose a risk of repeating the crime in light of the following facts: (a) the defendant and his defense counsel were sentenced to imprisonment without prison labor or heavier punishment at least twice for the same or similar crimes as the violation of the Punishment of Violences, etc. Act, and were sentenced to imprisonment without prison labor or more punishment for the total term of three years or more; and (b) the defendant and his defense counsel continued to commit the crime of the same or similar crimes for a period of six years or more from the year 1970 to the year 1978; and (c) they committed the crime again for a period of three years since they were released from prison due to the final criminal act during the crime, and thus they did not meet the requirements for protective custody provided for in Article 5 (2) 2 of the Social Protection Act; and (d) the court below's dismissal of the prosecutor's appeal on the ground that the defendant and his defense counsel did not have any error in finding that the victim's grounds for appeal were too favorable or unfair.

Before determining on the grounds for appeal above, the prosecutor examined the case ex officio, and the prosecutor changed Article 5(2)2 of the Social Protection Act (amended by Act No. 5(2)1 of Apr. 7, 1982), which is the applicable provisions of the Act, to Article 2(2) of the Punishment of Violences, etc. Act (amended by Act No. 3(2) of the same Act), and Article 3(2)2 of the same Act, which is the applicable provisions of the Act, to Article 5(2)1 of the same Act as to the part of the defendant's case. Accordingly, since the facts leading to the facts charged and the claim for custody were changed and the party members permitted it, the court below's decision that does not need to determine on the grounds for appeal by the prosecutor and the defendant cannot be exempted from the whole reversal

Therefore, according to Article 364(2) and (6) of the Criminal Procedure Act and Article 42 of the Social Protection Act, the entire judgment of the court below (the defendant's case and custody case) is reversed ex officio and a member of the party is again decided

On February 15, 1970, the defendant was sentenced to a suspended sentence of imprisonment for 8 months at the Seoul District Criminal Court for the crime of injury; six months at the same court on April 15, 1972 for the crime of violation of the Punishment of Violences, etc. Act; on February 12, 1974, the defendant was sentenced to imprisonment for 3 years at the same court on July 29, 1978; he was sentenced to one year at the same court on July 29, 1978 for a violation of the Punishment of Violences, etc. Act due to injury; and was released on June 12, 1979 after the clothes from the Gangnam Prison Prison prison; on October 20:0, 1981, the defendant was released on June 23, 1979; on October 20, 200, the defendant took the face of the victim on the ground that the victim Nonindicted Party 1 was injured by his shape.

The facts other than the previous convictions in the facts of the judgment

1. Statement suitable for it at the court of the first instance of the defendant;

1. Statement corresponding to Non-Indicted 1’s statement of the trial witness.

1. Part concerning the statement suitable for the defendant in the trial records of the court below

1. The description of the suspect examination of the accused prepared by the public prosecutor, which fit for it;

1. The record of Nonindicted Party 1’s statement prepared by the judicial police officer’s handling of business affairs, which fit the record.

1. From among the written diagnosis of injury of Non-Indicted 1 prepared by the doctor non-Indicted 2, it can be recognized in full view of the records that meet the part and degree of the injury in the above judgment. The previous records of the judgment of the court below can be recognized by the investigation data card of the defendant's statement in the trial records of the court below, the investigation data card of the defendant in the third chief of the Seoul District Public Prosecutor's Office, and the certified copy of the judgment prepared by Non-Indicted 3

The court below's judgment falls under Article 2 (2) and (1) of the Punishment of Violences, etc. Act and Article 257 (1) of the Criminal Act. Since Article 257 (1) of the Punishment of Violences, etc. Act select imprisonment among the prescribed types of punishment under Article 257 (1) of the Criminal Act, the punishment is aggravated by Article 2 (2) of the Punishment of Violences, etc. Act, and the repeated crime of the above judgment is imposed by Article 35 of the Criminal Act, the defendant shall be punished by imprisonment for 2 years within the scope of the punishment imposed by repeated crime pursuant to Article 35 of the Criminal Act, and 60 days from the number of detention days before

The summary of the facts of the cause of the claim for custody of the applicant for custody is that “The applicant for custody shall be sentenced to imprisonment without prison labor or heavier punishment for at least two crimes identical with or similar to the crime of violating the Punishment of Violences, etc. Act as stated in the first head of the above crime, and the sum of the term of punishment is at least three years, and shall be punished by imprisonment with prison labor for at least five years, and shall be punished by imprisonment with prison labor for at least five years again after the execution of the final sentence, and shall be at least seven years in accordance with Article 5(2)1 of the Social Protection Act.”

Therefore, according to the above-mentioned criminal record relation, the requester for the warrant of custody has been sentenced not less than twice to the same or similar crime as the crime of violating the Punishment of Violences, etc. due to the bodily injury of this case (According to the statement of the certified copy of the judgment of Non-Indicted 3 written by the Seoul District Prosecutor's Office assistant prosecutor's office in Seoul, even before the above judgment was sentenced on July 29, 1978, the fact that the sum of the sentence amounts to not less than three years can be recognized.

However, the risk of recidivism under Article 5 (2) 1 of the Social Protection Act refers to the possibility that a person subject to protection may violate legal peace by committing a crime in the future. In recognition of it shall be determined by comprehensively taking into account the defendant's age, family relation, educational level and occupation, criminal record, the period of release from the court due to the last course of the crime and the period between the crime and the period of release from the court. In addition, the criteria for determining the risk of recidivism should not be interpreted strictly, considering that the protective custody system was made as the last means of criminal policy to protect society from a dangerous criminal who is difficult to expect the effect of punishment, and that the suffering or impact on the person subject to protection is serious.

According to the reasoning of the court below's judgment, the defendant 2 had the right to use the bicycle repair shop in work on June 12, 1979 and had the right to use the bicycle repair shop in work on his own around 2 years and 4 months after the release of the prison. Since the defendant 2 had the right to use drinking everyday, the defendant 1 did not want the defendant 2 to have the right to use drinking, and the defendant 2 had the right to use the same as the defendant 2's defendant 2's defendant 1's defendant 2's defendant 2's defendant 2's defendant 2's defendant 2's defendant 2's defendant 2's defendant 2's defendant 2's defendant 2's defendant 2's defendant 2's family relation with non-indicted 1's witness 1's witness 2's defendant 2's defendant 2's defendant 2's non-indicted 1's non-indicted 1's defendant 2's defendant 1's defendant 1's body's defendant 1's body.

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

Judge Final (Presiding Judge)