행정입원의 실체적 절차적 주요 사안에 대한 법적 정신의학적 고찰
Legal and Psychiatric Consideration on Major Substantive and Procedural Issues of Administrative Hospitalization
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For the proper operation of administrative hospitalization, this study examined the improvements of administrative hospitalization through an in-depth review of major substantive and procedural issues of administrative hospitalization, one of the involuntary hospitalizations under the current Mental Health Welfare Act. Although administrative hospitalization restricts the freedom of people with mental illnesses to a level comparable to personal restraint and the principles of limiting fundamental rights under the constitution must be strictly observed, the unconstitutionality of the current administrative hospitalization system has not been completely resolved. In addition, the practical understanding of the legal nature of the affairs of administrative hospitalization, the legal nature of the right to apply for diagnosis and protection, the limitations of police administration based on the right to request, and the criteria of risk of harm to self or others in administrative hospitalization may contribute to the human rights-based legitimate implementation of administrative hospitalization. Furthermore, the requirement of obviousness should be revised in terms of specific content and timing of application because of the ambiguity and illogical issues of the notion of obviousness related to the requirement for the release of administrative hospitalization. Finally, a public transfer system must be established to support the administrative hospitalization procedure and improve the administrative hospitalization system within the constitutional order of the Republic of Korea by reflecting the legislative provisions in alignment with the international human rights framework.
Abstract
For the proper operation of administrative hospitalization, this study examined the improvements of administrative hospitalization through an in-depth review of major substantive and procedural issues of administrative hospitalization, one of the involuntary hospitalizations under the current Mental Health Welfare Act. Although administrative hospitalization restricts the freedom of people with mental illnesses to a level comparable to personal restraint and the principles of limiting fundamental rights under the constitution must be strictly observed, the unconstitutionality of the current administrative hospitalization system has not been completely resolved. In addition, the practical understanding of the legal nature of the affairs of administrative hospitalization, the legal nature of the right to apply for diagnosis and protection, the limitations of police administration based on the right to request, and the criteria of risk of harm to self or others in administrative hospitalization may contribute to the human rights-based legitimate implementation of administrative hospitalization. Furthermore, the requirement of obviousness should be revised in terms of specific content and timing of application because of the ambiguity and illogical issues of the notion of obviousness related to the requirement for the release of administrative hospitalization. Finally, a public transfer system must be established to support the administrative hospitalization procedure and improve the administrative hospitalization system within the constitutional order of the Republic of Korea by reflecting the legislative provisions in alignment with the international human rights framework.
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