치료감호 청구절차와 정신감정에 관한 연구:수사재판기록 분석을 중심으로

Abstract

Medical Treatment and Custody Act was enacted to supplant Social Protection Act, which had been accused of violating human rights. In order to strengthen the purpose of treatment, Medical Treatment and Custody Act added the need for treatment as a requirement of a disposition and provides that prosecutors and judges shall consult with psychiatric expert opinions. This article examines medical treatment and custody procedures with a focus on forensic psychiatric examination that is meant to reinforce the therapeutic function of mental treatment and custody. The results of the study show that only 65.8% among 187 cases filed between 2014 and 2016 included forensic examination reports. Also, psychiatric examination results as to the need for treatment and the risk of recidivism were found to have not been fully accepted in the court. These results suggest that the roles of forensic psychiatric examination need to be reinforced in the procedure and judgement regarding medical treatment and custody. Medical treatment and custody purports, first and foremost, to provide treatment to mentally disordered offenders but at the same time, it accompanies a deprivation of freedom to a substantial extent. In this regard, special attention should be paid to the need for treatment in order to avoid human rights violations due to custody without treatment. Also, it should be considered that the need for treatment under the act specifically means the need for treatment “at a medical treatment and detention facility.” The purposes of recidivism prevention and rehabilitation by means of medical treatment can be fully achieved when the judgment is based on the rigorous examination of a candidate’s psychiatric conditions.