[2] The requirements for issuing a medical treatment order along with medical treatment and custody where the medical treatment order and medical treatment order are requested for a sexually disabled person who committed a sexual crime

Examining the reasoning of the lower judgment in light of the evidence, the lower court did not err by misapprehending the legal doctrine on mistake of facts, confession, and mental and physical disorder due to violation of the rules of evidence.

In addition, according to the evidence and records adopted by the court below and the circumstances that form the conditions for sentencing, such as the age, character and conduct, environment, family relationship, motive, means and process of the crime, and circumstances after the crime, of the defendant and the person subject to attachment order and the person subject to attachment order as well as the person subject to a request for attachment order (hereinafter “the defendant”), which are recognized by the court below, the court below did not err in the imposition of 22-year imprisonment with labor

2. As to the case of a request for attachment order and medical treatment and custody claim

With respect to each of the above cases, no grounds for objection shall be stated in the petition of appeal or the appellate brief.

3. As to the case of medical treatment order request

ex officio deemed.

A. The order of pharmacologic treatment by the Act on Pharmacologic Treatment of Sexual Impharmacologics (hereinafter “Pharmacologic Treatment Act”) is a security measure that provides a treatment to a sexual competing patient who has committed a sexual crime and is 19 years of age or older who is deemed to pose a risk of recommitting a sexual crime for a certain period of time, such as medication and psychological treatment. As a matter of principle, the administration of drugs, which may cause permanent change to the body after the completion of a punishment, and thus, is a direct and influent disposition for the freedom of body and the right to self-determination guaranteed by the Constitution, in that it is forced to implement a considerable period of time without the consent of the respondent. Therefore, in the case of a person who is expected to be punished for a long period of time, the order should be imposed only where it is inevitable to prevent recidivism, promote rehabilitation in spite of the execution of the punishment, and to take additional measures to protect the people.

Meanwhile, Article 2(1)3 of the Medical Treatment and Custody Act provides that sexually disabled persons who have sexual intercourses shall be subject to medical treatment and custody. Articles 2(1)1 and 4(1)3 of the Medical Treatment and Custody Act provide that mentally disabled persons as defined in Article 2(1)3 of the Medical Treatment and Custody Act shall be subject to medical treatment and custody as one type of patients with sexual intercourses who are subject to medical treatment order. Therefore, sexually disabled persons who have committed sexual assaults may be requested together with medical treatment and custody. However, as seen earlier, the medical treatment and custody order itself, which is enforced without the consent of the person subject to medical treatment and custody, is subject to significant restriction on the freedom of body and self-determination of the person subject to medical treatment and custody within the scope of the period of confinement stipulated under the Medical Treatment and Custody Act. In principle, when a medical treatment and custody order is issued together with a medical treatment and custody order, the medical treatment and custody order may be again executed within 20 months before the termination, termination, or entrustment of medical treatment and custody.

B. According to the records, the Defendant committed the instant crime on several occasions, such as intrusion upon the victim’s residence from September 4, 2005 to March 25, 2014, or rape, etc. by threatening the victims with a deadly weapon; ② On May 2014, a prosecutor, after investigating the Defendant’s mental sentiment and probation officer’s request, filed a complaint against the Defendant for the instant crime with the medical treatment and custody attachment order; ③ as a result of the said mental diagnosis, the Defendant was diagnosed as a patient with a pindent, and the appraiser presented an opinion that a specialized mental therapy (mental medicine treatment, sexual impulse medication treatment, and cognitive behavior treatment) is necessary to prevent recidivism; ④ as a result of the application of the risk assessment of recidivism by a sex offender in Korea, the probation officer who conducted the investigation prior to the said claim presented his opinion that the risk of recidivism is at least “the intermediate risk” at the level of recidivism, and “the risk of recidivism at the level of recidivism at which a mental disorder is high” as a result of the evaluation of recidivism risk of a sexual offender.

C. However, it is difficult to view the risk of recidivism, etc. of a defendant at the time of the execution of a medical treatment order, i.e., at the time of the execution of the medical treatment order, as an assessment of the risk of recidivism at the time of the completion of the medical treatment order, only by evaluating the risk of recidivism of the defendant at the time of appraisal or investigation. In addition, according to the type and degree of mental disorder, it cannot be ruled out that the disability is cured or improved through appropriate treatment at the time of the medical treatment and custody office. Thus, where the medical treatment and custody order is requested together, the specific contents of the treatment to be performed through the medical treatment and custody, the treatment effect expected by it, the reasons for necessity of the medical treatment order after the medical treatment and custody, and the period expected after the medical treatment

Therefore, the court below should have judged whether to accept the request for medical treatment order carefully after securing objective data necessary to determine whether sexual assault crime is likely to be committed at the time of the execution of medical treatment order, notwithstanding the progress of medical treatment through medical treatment and custody, and comprehensively evaluating various circumstances, apart from the risk of recidivism as a requirement for medical treatment and custody.

Nevertheless, the lower court, without doing so, accepted the request for medical treatment order on the basis of only the reasons indicated in its reasoning, such as the above mental sentiment statement and the written investigation prior to the request. In this regard, the lower court erred by misapprehending the legal doctrine regarding “risk of recommitting sexual crimes” as the requirements for medical treatment order request, or by failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

4. Conclusion

Therefore, the part of the judgment of the court below regarding the claim for medical treatment order is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. All appeals regarding the defendant's case, medical treatment and custody claim and attachment order claim are dismissed. It is so decided as per Disposition by the assent of all participating Justices

Justices Min Il-young (Presiding Justice)