Attorney Kim Si-hwan, Counsel for defendant-appellant

2. Costs of trial shall be borne by the claimant for remedy.

According to the records, the following facts are proved:

가. 구제청구자 겸 피수용자(이하 '피수용자'라고만 한다.)는 2008. 10. 9. 피수용자의 처 김C의 동의하에 처에 대한 부정망상 등으로 수용자가 운영하는 의료법인 ◈병원(이하 ‘수용자 병원'이라 한다)에 수용되었다.

B. On February 9, 2010, the inmate filed a petition for remedy for personal protection with the purport that his wife forced himself to be hospitalized in the inmate hospital.

2. Summary of the parties' arguments;

A. The argument of the inmate

The first confinement itself is illegal because there is no such mental illness against the inmate, and even if there was a mental illness, such as a misappropriation against the inmate at the time of the first confinement, it is not necessary to continue the confinement since such mental disease or risk has ceased at present.

B. Claim of prisoners

At the time of confinement on October 9, 2008, the inmate was hospitalized with the diagnosis of a medical specialist of the hospital with the consent of the inmate's wife. At the time of confinement, it was judged that there was a risk of mental abnormal behavior and serious harm to the inmate's wife prior to confinement, such as working violence to the inmate's wife, etc., so the confinement in this case is legitimate, and even until now, there is a high risk of harm to the inmate's wife in social life as it continues to be treated due to an illegal damage to the wife, and there is a need for continued confinement.

3. Determination

A. Relevant provisions of the former Mental Health Act (amended by Act No. 8939 of March 21, 2008 and enforced March 22, 2009)

Article 21 (Person Responsible for Protection)

(1) A person responsible for supporting a mentally ill person or a guardian under the Civil Act shall be a person responsible for protection of a mentally ill person: Provided, That any of the following persons shall not be a person responsible for protection:

1. Incompetent or quasi-incompetent;

2. A person declared bankrupt and not yet reinstated;

3. A person who is or has been in a pending lawsuit against the psychopath, and his spouse; and

4. A minor;

5. A missing person.

(2) The order of protection duty among the legal guardians under paragraph (1) shall be based on the order of guardian of the legal guardian of the legal guardian, and where there exist two or more legal guardians, the Civil Act shall apply.

(3) Where there is no legal guardian under paragraph (1) or the legal guardian is unable to perform his/her duties due to unavoidable reasons, the head of a Si/Gun/Gu having jurisdiction over the domicile of the relevant mentally ill person (where there is no address or unknown, the current domicile) shall be the legal guardian.

Article 24 (Hospitalization by Person Responsible for Protection)

(1) Where there exists the consent of the legal guardian of a mentally ill person, the director of a mental medical institution may hospitalize the mentally ill person concerned only where a psychiatrist has diagnosed that hospitalization is necessary, and shall obtain a written consent of hospitalization and a document verifying that the person is the legal guardian prescribed by Ordinance of the Ministry for Health, Welfare and Family Affairs

(2) Where a mentally ill person is diagnosed as requiring hospitalization, a psychiatrist shall attach a written recommendation for hospitalization stating his/her opinion that the relevant mentally ill person falls under any of the following cases in the written consent of hospitalization as provided for in paragraph (1):

1. Where a patient suffers from a mental illness of a degree or nature to receive hospitalized treatment in a mental medical institution; 2. Where hospitalization is necessary for his/her own health or safety, or for the safety of another person, the hospitalization period referred to in paragraph (1) shall not exceed six months: Provided, That where the director of the mental medical institution has conducted the diagnosis by a psychiatrist who needs continuous medical treatment after six months have elapsed, and the legal guardian has submitted the written consent of hospitalization referred to in paragraph (1), he/she shall request a Mayor/Do Governor for examination on continuous hospitalized treatment every six

B. Determination

(1) Whether the initial confinement is lawful

In light of the following circumstances, in addition to the above provisions of the Mental Health Act, which can be seen in the records and examination, i.e., (i) the wife KimC of the inmate, who lived with the inmate on October 9, 2008, consented as the legal guardian in the written consent of hospitalization on the same day; (ii) the medical doctor of the inmate hospital recommended that the inmate be in need of hospitalized treatment due to an illegal or negative disorder in the wife on the same day; and (iii) even before the instant confinement, it has been repeated from January 194 by using violence to the wife, such as violence against the wife, and thus, it is clearly explained that it is necessary to hospitalization for the safety of others or for the treatment of the inmate. Thus, the first confinement of the inmate is legitimate.

(2) The legality of continued confinement

According to the above provisions of the Mental Health Act, in the case of protective hospitalization, a request for review of hospitalized treatment shall be made every six months, and according to the records, a decision of continuous hospitalization has been received from the head of Busan Metropolitan City on April 2009, which is within six months from the initial hospitalization, and thereafter, a decision of continuous hospitalization has been received from the head of Busan Metropolitan City on April 2009, and the decision of continuous hospitalization has been made every six months. Thus, the continued acceptance of the inmate is also lawful.

(3) In full view of the record of the necessity of continuing confinement and the results of the examination, the inmate is still in need of continuing hospitalized treatment, since it is judged that there is a lack of awareness of his/her own mental illness at present, experience in a serious level of mental disorder, and that there is a high risk of causing harm to the life and body of his/her family due to an misappropriation disorder on the wife, and thus, it is necessary to continue hospitalized treatment.

4. Conclusion

Therefore, the inmate's claim for remedy of this case is dismissed in accordance with Article 13 (2) of the Personal Protection Act on the ground that the inmate's claim for remedy of this case is groundless, and the costs of trial are in accordance with Article 14 of the

The decision shall be made as per the disposition with respect to the burden of the lost inmate.

April 22, 2010