형사책임능력의 판단기준에 관한 고찰 - 미국의 정신이상항변을 중심으로 -
Assesment on Criminal Competency - related Insanity Defense in U.S.
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The criminal law assumes people know the law and have free will. Their abilities to know and to choose(or, put in psychological terms, their cognitive and volitional capacities) are bedrock premises of criminal responsibility and underlie all philosophical theories of punishment. Thus,criminal law doctrine condones cognitive or volitional failure as an excuse in legal insanity. Depending on the applicable legal test, a person is legally insane and not responsible for a crime if, as a result of mental illness, his cognitive or volitional capacity was seriously impaired when he committed the offense. According to Article 10 in our criminal code, the mentally disordered offender has no ability or diminished ability to appreciate the criminality of his conduct or to control his conduct as a result of mental disorder. However, Article 10 have nothing but the ambiguous expression on the concept of insanity such as no responsibility or limited(diminished)responsibility, besides does not describe definitely the meaning of mental disorder and the guideline of deciding for the criminal responsibility. This may be caused by different categories of mental disorder but also by drunkenness. For the accomplishment of exact and definite psychiatric testimony of mental disorder, the request for judgement of mental state should be adopted by the expert's knowledge and experience. In preparing for the trial (mental health) expert may evaluate the defendant using the forensic psychiatry and their American approaches. Based on a wide variety of information, such as the defendant`s mental health history, his account of the crime, the facts and circumstances surrounding the crime,and psychological and medical testing, judge should decide mental disordered person`s responsibility individually in their normative viewpoints.
Abstract
The criminal law assumes people know the law and have free will. Their abilities to know and to choose(or, put in psychological terms, their cognitive and volitional capacities) are bedrock premises of criminal responsibility and underlie all philosophical theories of punishment. Thus,criminal law doctrine condones cognitive or volitional failure as an excuse in legal insanity. Depending on the applicable legal test, a person is legally insane and not responsible for a crime if, as a result of mental illness, his cognitive or volitional capacity was seriously impaired when he committed the offense. According to Article 10 in our criminal code, the mentally disordered offender has no ability or diminished ability to appreciate the criminality of his conduct or to control his conduct as a result of mental disorder. However, Article 10 have nothing but the ambiguous expression on the concept of insanity such as no responsibility or limited(diminished)responsibility, besides does not describe definitely the meaning of mental disorder and the guideline of deciding for the criminal responsibility. This may be caused by different categories of mental disorder but also by drunkenness. For the accomplishment of exact and definite psychiatric testimony of mental disorder, the request for judgement of mental state should be adopted by the expert's knowledge and experience. In preparing for the trial (mental health) expert may evaluate the defendant using the forensic psychiatry and their American approaches. Based on a wide variety of information, such as the defendant`s mental health history, his account of the crime, the facts and circumstances surrounding the crime,and psychological and medical testing, judge should decide mental disordered person`s responsibility individually in their normative viewpoints.
참고문헌 (37)
- 조병구, "형사책임능력 부존재에 관한 심리에서의 제 문제", 형사소송법상이론과 실무, 2(1), pp.230~ (2010), 형사소송법학학회
- ST. Thomas Aquinas, "Of Free Will, The Summa Theologica", pp.147~155 (1920), permission of Burns & Oates Ltd.
- Morris, Herbert, "Freedom and responsibility: Readings in Philosophy and Law", pp.437~441 (1961), Stanford University Press
- 김성돈, "능적 책임개념", 고시계, pp.15~ (1998)
- 김일수, "형법총론(새로쓴 11판)" (2006), 박영사
- 임웅, "형법총론" (2010), 법문사
- 오영근, "형법총론(제2판)" (2009), 박영사
- 이재상, "형법총론(제5판)" (2004), 박영사
- 정성근, "형법총론(제4판)" (2008), 삼지원
- 김성돈, "형법총론(제2판)" (2009), 성균관대학교 출판부
- 김일수, "한국형법 II", pp.55~57
- 이형국, "형법총론", pp.186~ (2007), 법문사
- 신양균, "책임능력과 감정", 형사판례연구, (5) (1997)
- 김성돈, "형법 제10조의 해석과 위법성의 인식", 차용석교수화갑기념논문집, pp.5~ (1994)
- 형사책임과 정신감정, "정규원", 한국심리학회, ~ (2001)
- 치료감호에 관한 연구, "장규원", 한국형사정책연구원, 9~ (1994)
- 김종률, "정신감정과 치료감호자료집", pp.26~ (1996), 한국형사정책연구원
- 배종대, "형법총론(제7판)", pp.372~ (2004), 홍문사
- Heny T. Miller, "Recent changes in criminal law: The Federal insanity defense", Louisiana Law Review, pp.152~ (1995)
- Richard G. Singer, "Criminal Law(4th ed.)", pp.501~514 (2007), Aspen Publishers
- Lawrence S. Wrightsman, "Forensic Assessment in Criminal Cases:Competence and Insanity, in Psychology and The Legal System" (2002), Wordsworth
- Bonnie, R. J., "The Competence of Criminal Defendants: Beyond Dusky and Drop", University of Miami Law Review, 47, pp.539~601 (1993)
- Melton, "Psychological evaluation for the courts: A handbook for mental health professionals(2nd edition)", pp.74~ (1997), Guilford
- Cynthia G. Hawkins-Leon, "Literature as Law: The History of the Insanity Plea and a Fictional Application Within the Law and Literature Canon", 72 Temp. L. Rev. 381, 391 (1999)
- Wayne R. LaFave, "Criminal Law Fourth Edition", pp.376~ (2003)
- Michelle Migdal Gee, "Modern Status of Test of Criminal Responsibility-State Cases", 9 A.L.R. 4th 526 (1981)
- Jules B. Gerard, "The Medical Model of Mental Illness-Its Application to the Insanity Defense", International Journal of Law and Psychiatry, 22(1) (1999)
- Jodie English, "The Light between Twilight and Dusk: Federal Criminal Law and the Volitional Insanity Defense, in The Role of Mental Illness in Criminal Trials in Jane Campbell Moriaty, The Insanity Defense: The American Developments", pp.154~ (2001), Routledge
- W.J. Winslade, "The Insanity Plea" (1983), Scribner's
- Jules Gerard, "The Usefulness of the Medical Model to the Legal System", 39 RUTGERS L. Rev. 377
- D. Goodwin, "Psychiatric Diagnosis 5th ed.", pp.19~ (1996)
- Winick, "Ambiguities in the Legal Meaning and Significance of Mental Illness", 1 PSYCHOLOGY, PUB. POL`Y & LAW 534 (1995)
- Stephen J. Morse, "Excusing the crazy: the insanity defense reconsidered", Southern California Law Review, pp.782~ (1985)
- Bradford H. Charles, "Pennsylvania`s Definitions of Insanity and Mental Illness: A Distinction With A Difference?", Temple Political and Civil Rights Law Review, Spring 2003 Symposium (2003)
- Richard Rogers, "The Rogers Criminal Responsibility Assessment Scales", 160 Ill. Med. J. 164 (1981)
- Tyng Loh, "Addressing Genetic Predisposition for Alcoholism in Criminal Sentencing Proceedings", Mich. St. U. J. Med. & L., 5, pp.75~ (2001)
- Richard G. Singer, "Criminal Law(4th Edition)", pp.499~507