精神障碍者와 司法節次 - 그 一般論 및 몇가지 現實的인 問題點들 一

• 영문명: The Mentally Disabled Defendants and the Legal Procedure — An Overview and the Problems in Practice —
• 발행기관: 대한신경정신의학회
• 저자명: 孫容根
• 간행물 정보: 『신경정신의학』제31권 제6호, 1046~1054쪽, 전체 9쪽
• 주제분류: 의약학 > 정신과학
• 파일형태: PDF
• 발행일자: 1992.11.30

영문 초록

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 deplorablesituation 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 com prehension 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 follows: 1) Expert Witness Cost The expert witness cost is a kind of a procedural cost to be 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 Korean should recognize the need for this 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 dose 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 perpor, deference to expert opinions is needed to prevent the subjective determination o f the court. 4) Civil Procedure and Psychiatric Examination In Korea, examination for a lawsuit rarely indludes 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 U nder 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 devendant mentally weak instead of mentally disabled despite a “mentally disabled” finding, when a heinous crime is in trial. This tendency of 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

목차

글 머리에

精神障碍者의 法的取扱

몇가지 現寅的인 問題點들

특히 刑事法分野와 精神障碍者

글 끝에

References

키워드

Forensic psychiatry Legal procedure Expert withness