2019Nom2 (Joint Medical Treatment and Custody)

A person shall be appointed.

(Consolidation) Judgment

A. Defendant case (an unreasonable sentencing case)

Punishment (one million won) sentenced by the court below is too unreasonable.

B. Considering the fact that the Defendant and the requester for medical treatment and custody (hereinafter “Defendant”) are in an environment where appropriate medical treatment can be given and the mother appears to have a strong intention of medical treatment, it is difficult to view that there is a need to receive medical treatment at the medical treatment and custody facility and a risk of recidivism, and thus, the medical treatment and custody order for the Defendant is unreasonable.

2. Determination

A. Determination on the part of the defendant's case

① The lower court: (a) took into account the circumstances unfavorable to the Defendant, such as the fact that the Defendant used violence to the victims without any particular reason; (b) the victim did not take appropriate measures to recover from damage; and (c) the victim’s side did not hedging from the mental shock that occurred from each of the instant crimes; and (d) expressed the intent to punish the Defendant in an investigative agency and a court of the lower court; (b) the Defendant did not bear any injury; (c) the Defendant committed each of the instant crimes in a state of mental disorder; and (d) the Defendant’s mother’s wife’s wife’s wife’s wife’s wife’s wife’s wife’s wife’s wife was very difficult; and (c) took into account the following factors: (a) the Defendant’s age, character, environment, motive, means and consequence of the instant crime; and (b) determined the Defendant’s punishment as a fine of one

In full view of the factors and guidelines for sentencing expressed in the sentencing review process of the lower court, the lower court’s determination of sentencing is not deemed to have exceeded the reasonable bounds of its discretion.

Furthermore, there is no circumstance that the court below's decision on the grounds of unfair sentencing asserted by the defendant in this court is unreasonable even if the court below has determined the defendant's punishment and has taken full account of the materials presented during the sentencing hearing of this court. Accordingly, the defendant's assertion on this part is not accepted.

B. Determination on the medical treatment and custody claim part

1) Summary of the judgment of the court below

The Defendant also argued to the same effect as the grounds for appeal in this part of the judgment below, and the lower court determined that the Defendant was in need of medical treatment and custody facilities to receive medical treatment and custody and danger of recidivism according to the results of the jury's unanimous verdict of unanimous verdict of a participatory trial. 2) The requirements for medical treatment and custody

Article 2(1) of the Medical Treatment and Custody Act (hereinafter referred to as the "Medical Treatment and Custody Act") provides that "persons subject to medical treatment and custody" means any of the following persons who need to receive medical treatment at a medical treatment and custody facility and have the risk of re-offending; and "the person is not punishable pursuant to Article 10(1) of the Criminal Act or is a mentally handicapped person whose punishment is mitigated pursuant to Article 10(2) of the same Act, and who has committed an offense equivalent to imprisonment without prison labor or heavier punishment. Therefore, in order to sentence a defendant for medical treatment and custody, the person is eligible for medical treatment and custody.

B) Whether the defendant constitutes a mental disorder, and the risk of recidivism, and the fact that the defendant committed the crime of bodily harm and the crime of assault committed in the holding of the court below, which lacks the ability to distinguish things and make decisions due to a pulmonary disorder, etc., and that the punishment is mitigated pursuant to Article 10(2) of the Criminal Act is the

In addition, considering the following facts and circumstances that can be recognized by the evidence duly adopted and investigated by the court below, the risk of recidivism is also recognized by the defendant.

① On March 5, 2018, the Defendant was subject to a disposition on the part of the Seoul Western District Prosecutors’ Office on the ground of lack of accountability with respect to the Defendant’s act of destroying and damaging property and assaulting, etc. on March 13, 2018, and the prosecutor filed a request for medical treatment and custody with the reason for the above act. On this point, it is difficult to conclude that the Defendant’s violent nature on July 20, 2018 was continuously found for a long time. It is difficult for the Seoul Western District Court to conclude that the Defendant’s violent nature on July 20, 2018, which can be protected and educated within 24 hours of facilities to be admitted to the “Seoseo short-term protection facility” to have the effect similar to medical treatment and custody. Despite the fact that the Defendant’s mother is economically and psychologically difficult, the Defendant dismissed the prosecutor’s request for medical treatment and custody on the ground that the Defendant maintained love and unconstitutional attitude with respect to children so that they can live in society in a sound manner.

② According to the above judgment, the Defendant was released from the Seoul Southern District Detention Center on July 20, 2018, and immediately thereafter, the Defendant was admitted to the “Sae-term and short-term protection facility” but was unable to enter the said facility, and was discharged on July 24, 2018. Since then, the Defendant committed each of the instant crimes.

③ Even before committing each of the above crimes, the Defendant sent each juvenile protection case to each of the following crimes due to the indecent act by force on May 17, 2017, the assault by a person on July 22, 2017, the damage of property, the bodily injury on August 25, 201, the damage of property, the damage of self-property on August 30, 201, and the damage of self-property on August 30, 2018.

C) According to the following facts and circumstances, which can be recognized through records as to whether the need for medical treatment exists (1) and (2), the following questions are raised as to whether the Defendant is in need of medical treatment at a medical treatment and custody facility.

(1) Article 1 of the Medical Treatment and Custody Act provides that "The purpose of this Act is to prevent recidivism of persons who have committed criminal acts in the state of mental disorder, addiction to narcotics, alcohol or other drugs, mental disorder, etc. and who are deemed likely to repeat recidivism and to require special education, improvement or medical treatment by providing appropriate protection and medical treatment." The legislative purpose of the Medical Treatment and Custody Act is to stipulate the legislative purpose of the Medical Treatment and Custody Act. To achieve such legislative purpose, Article 16 (1) of the Medical Treatment and Custody Act provides that "persons who have been sentenced to medical treatment and custody (hereinafter referred to as "persons subject to medical treatment and custody") shall be confined to a medical treatment and custody facility and take measures for medical treatment and custody." Article 16-2 (1) provides that "The Medical Treatment and Custody Center" (Article 16-2 (1) shall be referred to as "medical treatment and custody facility falling under the above paragraph (1)", and subparagraph 2 (hereinafter referred to as "designated legal hospital") designated by the Minister of Justice from among national mental institutions established and operated by the State.

② However, according to the reply to the fact-finding by the Director of the Medical Treatment and Custody Center, a person diagnosed as a self-defensive disorder is admitted to the Medical Treatment and Custody Center. However, the language therapy and psychological therapy for a self-defensive disorder is not operated. A medical specialist of the Medical Treatment and Custody Center who has conducted a mental diagnosis against the accused is anticipated to be exposed to an stude environment or stitue, or to be under emotional unstable. A medical treatment and custody center’s mental diagnosis is likely to be exposed to an impregible behavior, such as failing to regulate it and aggressive response or aggressive behavior. According to the above fact-finding reply, there is no program to adapt the person with characteristics of the self-defensive disorder in the Medical Treatment and Custody Center. In addition, the above medical treatment and custody center’s operation of the Medical Treatment and Custody Center’s operation of the Medical Treatment and Custody Center is not the only one way to improve the medical treatment and custody facility’s operation of the Medical Treatment and Custody Center.

(3) The defendant's mother submitted a written application to the effect that "the defendant is admitted to a medical treatment and custody center without treatment, so other facilities 1)" can be admitted to the court below and the court of the first instance so that the defendant can receive medical treatment. The defendant's mother is diagnosed as a similar person at the National Mental Hospital when he is four years of age, after he was judged as a 6 year of age 2, has experienced a big mental and economic pain, and is living as a basic livelihood recipient (Evidence No. 1, 44, 61 of the evidence record), and the medical treatment and custody order order order order order order order order order order order order order order order order order order order order order order order order order improvement of the defendant's self-harm cannot be ruled out in the future, and the defendant and his family members cannot be found to have been lawfully admitted to the medical treatment and custody order after considering the following circumstances.

① A medical specialist of a medical treatment and detention center who has conducted a mental diagnosis against a defendant is considered to be a patient with a 'self-harm disorder' who appears to have difficulty in verbal development, verbal and non-language communication, difficulty in adaptation to an stude environment, difficulty in emotional exchanges, and disorder in actions such as aggressively responding to or unpredictable actions against a person, etc. In the case of a self-harm disorder, it is known that there is no fundamental method of completely treating the patient. There is no need for continuous special rehabilitation treatment, education, and training in order to improve the ability to adapt to society of the patient with a self-harm disorder. It is believed that the mental disorder of the defendant is helpful to alleviate his or her mental disorder such as attack behavior. However, considering that the mental disorder of the defendant is unable to cope with the private mental hospital and private protective facility, and that there is no proper response to the treatment of her mother-child, it is deemed that the disposition of medical treatment and custody is not necessary to prevent recidivism in society and thus, it is necessary to reduce the effect of recidivism.

② As seen earlier, the Defendant had a record of transfer of juvenile protection cases and criminal records. In light of the fact that the Defendant again committed the instant crime since 20 days have not passed since the Defendant was released from the Seoul Southern Detention House, despite the strong protective intent of the mother of the Defendant, it is not likely that recidivism and rehabilitation can be achieved through appropriate treatment against the Defendant under its protection.

③ Although the symptoms of the defendant have deteriorated due to side effects of the drug treatment of the defendant, the mother of the defendant's mother seems to have deteriorated. However, when considering the lapse of four years and the whole medical history of the defendant, the professor of the Handong Hospital who is a professional examiner, "it is unreasonable to judge that the defendant had impulse and behavioral disorder due to side effects of the drug taken by the defendant, and "it is necessary to treat the defendant in the facility, such as a medical clinic," and it is thought that the patient needs to be treated in the facility, such as a medical clinic," and there is no limit to treating the defendant under the care of his/her family at home (Evidence No. 139, 140 of the evidence record). At the same time, the psychiatrist of the mental health clinic designated as an investigative adviser was not given appropriate treatment and protective measures after his/her release on July 20, 2018, and this seems to have not been able to address the mental health problem of the defendant at the same time after his/her own entrance in the medical institution.

(4) The term "necessary for medical treatment and custody facilities" under the Medical Treatment and Custody Act means the necessity for medical treatment at such medical treatment and custody facilities on the premise that there are appropriate medical treatment and custody facilities to provide appropriate medical treatment to persons subject to medical treatment and custody. Therefore, it is difficult to say that the necessity for medical treatment and custody is nonexistent solely on the ground that the current professional and systematic facilities and programs for persons with the same disability as the defendant do not exist in Korea.

D) Sub-decisions

The judgment of the court below is sufficiently acceptable, and there is no error as alleged by the defendant. Therefore, this part of the defendant's assertion is not accepted.

3. Conclusion

Therefore, since all of the defendant's appeal is without merit, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act and Article 51 of the Medical Treatment and Custody Act, and it is so decided as per Disposition (this court is bound to declare medical treatment and custody for the defendant for the above reasons, but it is urged that the government agency responsible for the execution of the judgment make efforts to enforce the judgment properly by establishing and operating medical treatment and custody facilities in conformity with the legislative purpose of the Medical Treatment

Judges Kang Jin-Gyeong

Judge Lee Bo-young