정신장애범죄인과 사법적 처우 – 일본의 의료관찰법과 정신감정 제도를 중심으로 -

Abstract

This paper aims to discuss judicial treatment of criminals with mental illness by analyzing Medical Probation Act and mental examination of Japan. The judicial treatment of mentally ill criminals is managed by Medical Probation Act, which was enacted for a purpose of treating persons of mental unsoundness who commit six serious criminal offenses, promoting their social rehabilitation, and preventing recidivism. When a prosecutor requests an adjudication on a person subject to the Medical Probation Act, the court orders the hospitalization for mental examination for less than two months. Using the result of the examination, the court makes an adjudication in a bench trial that composes one judge and one mental health adjudicator (a psychiatrist) and decides hospitalized treatment, out-patient care treatment, no treatment, or rejection of the case. In accordance with the adjudication, the ordered in-patient or out-patient care treatment is executed at hospitals designated by state or local governments. The adjudication under the Medical Probation Act is quite different in that a) a decision is made at a bench trial that consists of a judge and a medical doctor, and b) the court is actively involved in the whole cycle of hospitalization, discharge, and in-society treatment after discharge. Furthermore, the accused or defendant can swing back and forth between criminal trial and medical probation trial before prosecution or after confirmed sentencing. What is to notice is that the criteria used in a mental examination for criminal competence and the one for medical treatment are completely different. As such, the judicial system related to the Medical Probation Act is distinct from the judicial treatment on mentally ill criminals of Korea. However, Japanese cases carry significant implications including mental examination before prosecution, the two-track mental examination system, legislated regulation of mental examination at each stage of judicial treatment, the inclusion of psychiatrist in a judicial treatment, and out-care or in-society treatment.