精神障碍者와 司法節次 一 그 一般論 및 몇가지 現實的인 問題點들 —

The Mentally Disabled Defendants and the Legal Procedure — An Overview and the Problems in Practice —

As mental patients receive special treatments in the medical field, they need to be treated specially in many aspects in the legal field. For a long time, such a special legal treatment has been known as “Forensic Psychiatry” in abvanced countries. Unfortunately Korean doctors and judicial officials are not familiar even with the term Forensic Psychiatry. This deplorable situation has led me to write this article to draw the interest in the Forensic Psychiatry area and to facilitate the cooperation between medical and judicial fields. At first we must recognize the problems of different terminology. Since the law involves quite different terminology from that of the medicine, the comprehension and adoption of such legal terms to the medicine field should be done carefully. I will provide the definition for some terminology in this paper. In Korean judicial procedures, the problems in mental disability law practice are summarized as follow s: 1) Expert Witness Cost The expert witness cost is a kind of a procedural cost to the borne by defendant under the Rule of Korean Criminal Procedure. In practice, however, the government pays for the cost. Thus, it would be better to revise the article of the Criminal Procedure governing the expert witness cost to shift the cost burden from the defendant to the government. If not we must follow the Rule completely. Another problem is, then, how to pay for this cost. The budget for the Korean court system is under the control of the Supreme Court Administration. Thus, short-budgeted lower courts sometimes cannot afford to provide expert opinion opportunities to defendants with an alleged mental disability. To insure the fairness and jusitice, every lower court should be able to budget for the expert witness cost. 2) Forensic Psychiatry Institution The psychiatric examination of a defendant requires a special detention facility. However, there had been virtually no reliable mental hospital for this special purpose. Fortunately this problem can be solved easily after the government established the Forensic Psychiatry Institution. Practicing lawyers in Korea should recognize the need for special detention facility for the psychiatric examination. 3) Expert Opinion Evidence For Korean judges and prosecutors, accepting expert opinions as fact is a rule, rather an exception. That does not mean the courts accept the expert opinions blindfold. The courts use and do need to use demeanor evidence to determine the reliability of the evidence. However, when there is a conflict between an independant psychiatric examination report presented by the defendant and a court-requested psychiatric examination report, deference to expert opinions is needed to prevent subjective determination of the court. 4) Civil Procedure and Psychiatric Examination In Korea, medical examination for a lawsuit rarely includes a psychiatric examination. Even practicing attorneys consider the medical examination is an exclusive term for a physical examination rather than the psychiatric one. The advanced legal culture requires to recognize the importance of the psychiatric examination as one of the medical examinations. 5) Preference for the Mentally Weak Decision Under the Korean Criminal Code, mentally weak defendants can be sentenced to jail, while mentally disabled defendants are considered unable to commit a crime. This has made the courts prefer to find a defendant mentally weak instead of mentally disabled despite a “mentally disabled” finding, when a heinous crime is in trial. This tendency o f the courts should be changed because when a defendant is found mentally disabled, he still has to serve his time in different form for he is confined to a psychiatric detention center under the Social Protection Law of 1980. To remedy all these problems and to ascertain the reasonable treatment for the mentally disabled defendants, the cooperation between the medical a