정신장애 범죄자에 대한 강제적 의료조치와 보안처분

Abstract

Many of mentally disordered people harm others or themselves. Especially, they have more potential to commit violent crimes than mentally normal people. According to the doctrine of responsibility, a punishment is not imposed in that they have no capacity for their action due to their mental disorder. Or a less severe punishment is imposed with causes for penalty reduction in that they have limited capacity for their action. Therefore,the cure-custody systems or involuntary admission are essential for mentally disordered people to protect themselves, others and society. With respect to crimes with mental disorder, Korea enacted Mental Health Act and Cure Custody Act. Mentally disordered people who have the potential of crimes are involuntarily admitted to a mental hospital by severe requirements based on Mental Health Act. And mentally disordered offenders who committed a crime are treated with rehabilitation measures based on Cure Custody Act. Both Mental Health Act and Cure Custody Act are likely to run counter to human rights protected by the Constitution in that they take away personal liberty. With regard to mentally disordered people and offenders, improvements are required to keep a balance between restriction on personal liberty and fundamental rights under the Constitution. ⅰ) The Constitution in Korea guarantees a right to personal liberty for all the people. It is restricted by due process of law only in case of harming others by abuse of the right to personal liberty. Thus, deprivation of personal liberty such as arrest without warrant is limited to a suspect under criminal law. The requirements are very severe and accordingly need criminal activities more than 3 years and possibility of destruction of evidence and an escape. If a person who never commit a crime is deprived of his right to personal liberty in that he just has a potential to harm oneself or others, it means a violation of personal liberty guaranteed by the Constitution of Korea. ⅱ) It is possible that a mentally disordered person is involuntarily admitted to a hospital with agreement by a guardian or related expert. That might restrict or infringe a right to personal liberty protected by the Constitution. In addition, Mental Health Act provides that involuntary admission is applied to a mentally disordered person having a potential to harm not only others but also himself. It is doubtful that involuntary admission should be applied to even a mentally disordered person having a potential to harm himself. Considering that people have the right of self-determination on their own bodies, government interference should be limited as much as possible. ⅲ) When a mentally disordered person is involuntarily admitted to a mental hospital, his opinion should be first respected. Also involuntary admission should be limited to only when there is lots of potential to harm others. ⅳ) The object of cure-custody is ‘A person who has a high rate of recidivism’. This judgemental standard might lead to excessive expansion of eligibility. All people have a potential to commit a crime and can make same mistakes. To justify isolation of a mentally disordered person from society, there should be dangers or probabilities socially unpardonable. Thus, ‘the danger of recidivism’, one of requirements for compulsory treatments, should be modified into ‘probability of recidivism’. ⅴ) If a prosecutor apply for cure-custody, he should ask a mentally disordered person to undergo a prior mental examination by a suitably licensed or certified examiner. Human cognitive ability and mental capacity are object of mental science or brain science rather than object of normative judgement and a substantial portion of them can be explained. Therefore, the judgemental standard and contents of mental examination should be set up precisely through the use of medical knowledge and technology. ⅵ) If it is revealed that treatments such as involuntary admission are unreasonable, a judicial approach and review has to be fulfilled by the Habeas Corpus Act. ⅶ) Adequate facilities and systems for the treatment are required because the major objective of involuntary admission and cure-custody is to treat a disease, mental disorder. The quality of the treatment, material resources and human resources such as related experts play a crucial role in treatments and improvements for mentally disordered people. Finally, if China is to accept the basis of Korean Mental Health Act and Cure Custody Act, it also needs to accept Korean Habeas Corpus Act and National Human Rights Commission Act of Korea. Only by doing that, China can prevent the abuse of compulsory treatments of mentally disordered people.