형법 제10조 제1항의 개선방안

Abstract

The Article 10 provide that “A person who is caught in insanity is not responsible if he cannot appreciate the things or cannot deside his conduct.” This literal context has been legislated since 1953. so, we need to revise The Article 10①. And it is imperative to set some guidelines in order to judge whether they are mentally ill. A psychiatrist evaluates the criminal according to these two methods: Firstly, the right-wrong test in order to judge whether the criminal was aware of his or her criminal act at the time of committing the crime. Secondly, the will power test in order to judge whether the criminal was able to control his or her will to commit the crime. But, Psychiatrists or psychologists should be cautious about their use of psychological tests to evaluate mental state at the time of the offense for criminal responsibility. This result suggests that the court's decision on criminal responsibility should not be dependent mainly upon the psychological assessment by experts like psychiatrists or psychologists, which means the court's decision should precede the experts'. In conclusion, I would like to recommend for the Korean Criminal Law a concrete and clear provision of crimianl responsiblity in line with insanity: “A person who is caught in insanity is not responsible if he cannot appreciate the criminality of his conduct or cannot decide his conduct at the time of committing the crime.”