정신장애 의심자의 책임능력 및 형사제재의 판단구조에 관한 소고

A Study on the Criminal Responsibility of a Person Suffering From a Mental Disorder and Disposition Decision Structure

Article 10, Paragraph 1 of the Criminal Act provides : the act of a person who, because of mental disorder, is unable to make discriminations or to control one s will, shall not be punished, and Paragraph 2 provides : for the conduct of a person who, because of mental disorder, is deficient in the abilities mentioned in the preceding paragraph, the punishment shall be mitigated. This approach can be rationalized on the basis that such offenders may not have sound powers of punishment or may not deserve it. However, if the offence is of sufficient seriousness, the court may consider a medical treatment and custody order. In such judgment, psychiatric or psychological knowledge is required. Expert opinions can contribute to the court s judgment concerning a criminal responsibility or a medical treatment and custody order to the extent that they can demonstrate their expertise. Although it is the consistent position of the case that the opinions of the court are not bound to the expert opinions, the court should respect the diagnosis or treatment of mental illness. However, there is a risk that the method of evaluation which has not been scientifically verified may cause distortion in the fact findings, the admissibility of the evidence should be examined when judging the facts related to the capacity of responsibility. Particular attention should be paid when dealing with the case of the medical treatment and custody order, because predictive judgment is made about the need for treatment and the risk of recidivism. Therefore, it is necessary to let a consensus body composed of mental health specialists and judges decide the disposition concerning a medical treatment and custody order through legislation.