[상해·업무방해·재물손괴·절도·폭행(취소)·치료감호] 확정[각공2010상,329]
In a case where a medical treatment and custody application is filed with a person who lacks the ability to discern things or make decisions due to a impulse disorder, the case dismissing the application for medical treatment and custody on the ground that the applicant for medical treatment and custody lacks the necessity for medical treatment at the medical treatment and custody facility or the risk of recidivism;
In a case where a medical treatment and custody application is filed by committing a crime, such as obstruction of duties, damage to property, injury, theft, etc. over ten times while the ability to discern things or make decisions due to shock disorder, such as receiving hospitalized treatment and custody, etc., the case dismissing the application for medical treatment and custody on the ground that it is insufficient to deem the necessity of medical treatment and custody facilities or the risk of recidivism, in light of the social risk and degree of the crime, the principle of proportionality to be considered in particular in the decision on the disposition of medical treatment and custody, and the possibility of improvement, etc., on the grounds that the mental symptoms of the applicant for medical treatment and custody have not been verified, since it was impossible to find out an excessive gathering or disregarding situation, etc.
Articles 2 and 12(1) of the Medical Treatment and Custody Act
Constitutional Court en banc Order 2003Hun-Ba1 Decided February 3, 2005 (Hun-Gong101, 205)
Defendant
Park Jong-il
Attorney Jeon Ho-ho
A defendant shall be punished by imprisonment for not more than ten months.
However, the execution of the above punishment shall be suspended for three years from the date this judgment became final and conclusive.
To order the defendant to be put on probation.
Of the facts charged in this case, the charge of causing property damage on August 18, 2008 shall be acquitted.
All of the claims for medical treatment and custody of this case are dismissed.
In a state where the Defendant lacks the ability or decision-making ability to discern things due to shock disorder, such as receiving hospitalized treatment from the Eastnam Mental Hospital Hospital located in 117, Kim Jong-si, Kim Jong-si, 117, from January 26, 2007 to April 12, 2007, due to shock disorder, etc., the Defendant lacks the ability to discern things or make decisions.
1. On October 17:00 early October 2005, at a blood donation bus fixed vehicle located in the Incheon-si, Kim Jong-si, Kim Jong-si, on the ground that the victim non-indicted 1 working at that vehicle does not make any blood donation any longer to the defendant, the victim non-indicted 1 working at that vehicle accounts for his blood donation seat and does not turn on the blood donation seat, and the student of why why he gets her to her knife, her knife, her knife and her knife his knife and her knife his knife with his knife with his knife, and thereby interfere with the victim's blood collection management work by force such as avoiding
2. On January 1, 2007, at around 14:30, at the house of Kimhae-si, Kimhae-si, 27-24, the victim non-indicted 2, who is a nurse working therefor, and the victim non-indicted 2, who is a nurse working therefor, shall not be able to donate blood, and the victim non-indicted 2, who is the nurse at the same time, shall not be able to donate blood. After opening the door and opening the door inside the 1st floor of the above building within the corrective device of the building, and after opening the door in the vicinity of the 1st floor, the victim's blood collection and management work is obstructed by force, such as preventing the opening of door in front of the 1st floor of the building.
3. At around 10:00 on August 6, 2008, Nonindicted 3, a nurse working there, divided three support stands of the blood mixing machines owned by the victim’s name and Buddhist boxes (a total of 33,000 won), which were operated to prevent blood donation, into his/her hand without any particular reason, and damaged by removing three support stands of the blood mixing machines owned by him/her.
4. At around 17:30 on August 12, 2008, the victim non-indicted 3, who is a nurse working therefor, demanded the defendant to repair the damaged equipment as referred to in the above paragraph 3, demanding that the victim non-indicted 3 demand the defendant to repair the equipment. The victim's collection management work by force interferes with the victim's collection and management work by force by cutting out the drinking water from the board to the floor, cutting away the drinking water on the floor, cutting off the bomb from the raw water in a resting room, the water tank, and the ornamental powder for the ornamental use. The victim's bomb from the board to the floor by cutting the inside the bomb of the victim's bomb, cutting it into the floor, cutting it into the floor, cutting it out from the board to the part of the victim's bomb, and cutting it out from the board to the part of the victim.
5. On August 12, 2008, around 18:10, 2008, at the Cheongm and restaurant located in Kimhae-si, Kim Jong-si, and the victim Nonindicted 3 (the victim, the 40 years old) obstructed the defendant with the duty as set forth in the above paragraph 4, causing injury to the victim, such as "inwards" in need of approximately two weeks of treatment by breaking booming spaths and hairs.
6. At around 14:00 on March 24, 2009, the beer saves room located in Kimhae-si, Kimhae-si, and at around 14:00, the victim Nonindicted 4 (39 years of age), who is his employee, saves the Defendant’s save to the face of the victim, and saves the victim’s saves, saves and saves the victim’s save at the above saves room, thereby causing an injury to the victim in the number of days of treatment.
7. From around 11:55 on April 20, 2009 to 12:25, the SY service center office located in Kimhae-si, Kimhae-dong 727-1, the mother of the defendant found it to demand refund of repair costs in relation to the receipt of cell phones at the above service center and payment of 300,000 won at repair costs. However, the victim, the head of the above service center, Non-Indicted 5 (the victim non-indicted 5 (the age of 37) who was the head of the above service center, changed his intention to move until the counseling with other customers, and the electricity line was cut down. The victim could not use the telephone machine, such as taking a 112 report by cutting the fire engine, and putting the victim at the credit card settlement terminal, and continuously opening the service center and selling the part of the victim's 1 to the victim's hand and the part of the victim's 1 to the victim's hand and the part of the victim's 3 to the victim's hand.
8. On May 19, 2009, at around 16:10, at the scambling room located in Kimhae-si, Kim Jong-si, 1131-2 Home Packer, the ordered capital of which is less than, and the number of the ordered capital has changed, but the victim non-indicted 6 (n, 32 years old) who was the scambling place, suffered about 10 times from the victim due to the victim's non-indicted 6 (n, e.g., the victim's non-indicted 6 (n, e., e., the victim's non-indicted 6) facing about 10 weeks of the victim's unknefe portion, thereby causing injury to the victim, such as
9. At around 18:00 on May 19, 2009, at the place under the above paragraph 8, the victim returned KRW 10,000, which had been set up on the above Kabter as food payment, but the victim non-indicted 6 did not respond with the above Kabter in his hand, but obstructed the victim's business operation by force, such as by making a disturbance of about 30 minutes by gathering two Mabbers, and by gathering two Mabbers to toward employees, and by forcing customers to return to the above Kabter.
10. On June 27, 2009, around 17:10, at the 3rd floor, Busan Jeonpo-dong, 892-2 Homeplers underground, the music CD 3, DVD 1, and 2 disease of drinking water (total market value of 56,120 won) are not calculated, and they are stolen, without calculating the total market value of 56,120 won;
11. On September 11, 2009, around 09:15, at the Dong branch of the Gyeongnam Bank located in the Kimhae-si, the victim Nonindicted 8 (year 28) in the victim Nonindicted 8 (year 28) who embling the defendant with the right blue blue of his own work, and embling him by hand, and embling him, such as the victim's shoulder and flaps, which require approximately two weeks of medical treatment to the victim.
【Facts 1 to 5 at the Time of Sales】
1. Partial statement of the defendant;
1. Each police protocol on Nonindicted 3, Nonindicted 9, Nonindicted 1, and Nonindicted 2
1. Each report on Nonindicted 10 and Nonindicted 11
1. On-site reports;
1. A written diagnosis of injury to the victim Nonindicted 3
1. Written estimate;
【Fact 6 at the Time of Sales】
1. Partial statement of the defendant;
1. The witness Nonindicted 4’s legal statement
1. A copy of the photograph;
【Fact 7 at the Time of Sales】
1. Partial statement of the defendant;
1. Police suspect interrogation protocol of the accused;
1. The police statement of Nonindicted 5
1. Investigation report (for the time of interference with business);
[Each fact of paragraphs 8 and 9 at the Time of Sales]
1. Partial statement of the defendant;
1. The police statement of Nonindicted 6
1. A victim photograph;
1. Investigation report (with respect to CDs and photo attachment);
1. A written diagnosis of injury to the victim Nonindicted 6
[Fact 10]
1. Defendant's legal statement;
1. The police statement of Nonindicted 12
1. Investigation report (the photograph and receipt of the damaged article);
【Fact-finding 11】
1. Defendant's legal statement;
1. Each police statement made against Nonindicted 8 and Nonindicted 7
1. A general medical certificate;
1. Article relevant to the facts constituting an offense and the selection of punishment;
Article 314(1) of the Criminal Act (Interference with Business, Selection of Imprisonment, Selection of Imprisonment), Article 366 of the Criminal Act (Aggravated Destruction and Damage of Property, Selection of Imprisonment), Article 257(1) of the Criminal Act (Aggravated Injury, Selection of Imprisonment), Article 329 of the Criminal Act (a thief and Selection of Imprisonment)
1. Statutory mitigation;
Articles 10(2) and 55(1)3 of the Criminal Act.
1. Aggravation for concurrent crimes;
Article 37 former part of Article 37, Article 38 (1) 2, and Article 50 (Aggravation of Concurrent Crimes with Punishment and Punishment concerning Non-Indicted 6 of the Victims Who Has the largest penalty and Punishment)
1. Suspension of execution;
Article 62 (1) of the Criminal Act (Article 62 (1) (Article 62 (1) of the Criminal Act (Article 62 (1) does not focus on the degree of damage of this case, and provides that a considerable number of victims agree with some victims that they do not want punishment if they were found again, but they do not want to be punished; the defendant is waiting to commit the crime of this case in substitution for and against the defendant; the crime of this case is committed in a state of mental disorder caused by the shock disorder of the defendant; the defendant is being faithfully treated by the defendant; the defendant is being able to receive the treatment in good faith and the defendant's mother is able to receive the treatment
1. Probation;
Article 62-2 of the Criminal Act
1. Of the facts charged in the instant case, around August 18, 2008, the summary of the damage and damage to property was destroyed by the Defendant’s damage to the victim’s (vehicle number omitted) who was parked in the said parking lot in the victim’s possession of (vehicle number omitted) after the front light light light light of the Kandong-dong, Kimhae-si, around 10:20 on August 18, 2008, at the GY service center’s parking lot located in the Dong-dong, Kimhae-si, Kim Jong-si, where Nonindicted Party 5 was responsible before the victim Nonindicted Party 5 had not accepted the Defendant’s cell phone free of charge.
On the other hand, the Defendant consistently denied this part of the facts charged by asserting that there was no damage from the police to the post-explosive death of a lump sum death.
2. 가. 살피건대, 이 법원이 적법하게 채택하여 증거조사를 마친 증인 공소외 5, 공소외 13의 각 법정진술, 공소외 5에 대한 경찰 진술조서의 진술기재, 수사보고(창원지방검찰청 2009형제815호 수사기록 제32면)의 기재 및 차량사진의 영상에 의하면, ① 피해자 공소외 5는 사건 당일인 2008. 8. 18.경 경찰에서 용의자의 인상착의에 관하여 「용의자가 범행일시경 위 후사경을 손괴하는 것을 직접 보지는 못했으나 위 주차장 관리인인 공소외 13으로부터 ‘범인은 몸이 뚱뚱하고 키 170cm 정도의 스포츠머리 스타일에 사각형의 얼굴이었고, 상의는 세로로 흰줄과 녹색줄이 있는 옷을 착용하였다’는 말을 들었다」고 진술하였으나, 그로부터 약 11개월이 경과된 후인 2009. 7. 15.경 이 법정에서는 범인의 인상착의에 관하여 「키, 인상착의, 피고인이 주로 입고 다니는 옷 색깔, 크로스로 가방을 메고 다니는 점 등에 비추어 피고인이 범인임을 특정할 수 있었다」고 진술한 사실, ② 위 범행일로부터 약 4개월이 경과된 후인 2008. 12. 18.경 경찰은 목격자 공소외 13에게 오직 피고인의 사진 2장만을 제시하면서 범인이 맞느냐고 물었고 공소외 13은 그 사진을 보고 피고인이 범인이 맞다고 하면서 「위 사진에 있는 사람이 걸어와 피해자 차량의 조수석 후사경을 손으로 쳐서 손괴하는 것을 목격하였다」고 진술(당시 공소외 13에 대한 진술조서는 작성되지 않았다)한 바 있으나, 그로부터 약 11개월이 경과된 후인 2009. 7. 15. 이 법정에서는 「4차선 도로 건너편 100m정도 떨어진 지점에서 체크무늬 옷을 입은 범인이 위 주차장에서 피해자 차량의 후사경을 손괴하고 도망가는 것을 보았고 증인의 시력은 1.5 정도인데, 몸매와 얼굴로 보아 피고인이 분명하고 가방을 메었는지 여부는 잘 모르겠고, 위 범행일에 범인을 보고 이 법정에서 피고인을 처음 본다고 진술하였다가 검사의 반대신문에서는 2008. 12. 18.경 피의자 사진을 보고 확인한 적이 있다」고 진술하면서 그 범인으로 피고인을 지목한 사실이 인정된다.
B. (1) First, as seen earlier, the witness Nonindicted 13’s statement on the part of Nonindicted 13’s witness, who designated the Defendant as a criminal, does not satisfy the procedure to enhance the credibility of the criminal identification procedure, and in particular, Nonindicted 13 did not have to comply with the procedure to enhance the credibility of the criminal identification procedure, and even though Nonindicted 13 did so accurately with the criminal, it is relatively short of the time to witness the criminal’s face on the 4th line, which was less than 100 meters away from the view of the criminal, and the criminal had tried to view the criminal’s face, after 4 months passed after considering the criminal’s appearance, and 4 months passed after the criminal was viewed as the first offender, and in this court, the witness’s statement on the part of Nonindicted 13 did not memory the defendant’s photograph after 4 months from the day of the crime, and thus, it cannot be ruled out that there was no possibility that the defendant’s witness could have presented his photograph during the investigation process by giving out only other circumstances such as the defendant’s witness.
(2) Next, it is difficult to avoid the possibility that the defendant was a criminal offender by Nonindicted 13 when the victim did not directly witness the victim’s statement concerning the victim’s statement of Nonindicted 5, and the victim did not directly witness the damage to the rear police during the day of the crime as well as the possibility that the defendant was aware that he was a criminal offender, and it is difficult to conclude that the defendant was a criminal offender only with the appearance that the defendant got from Nonindicted 13 at the time. In addition, it is difficult to conclude that the defendant was a criminal offender solely with the appearance that the defendant got from Nonindicted 13 at the time. In addition, it is difficult for Nonindicted 13 to say that the victim’s statement alone does not contain any memory of Nonindicted 5, which is one of the main features of which the defendant was designated as a criminal offender, as to whether the defendant was in possession of the next room, and therefore, it is insufficient for the victim’s statement alone to see
(3) Finally, it is insufficient to use it as evidence of guilt, on the following grounds: (a) the description of the investigation report (in the original District Prosecutors’ Office 2009 type No. 815, page 32 of the investigation records) and images of vehicle photographs as evidence; and (b) the content of the above evidence was damaged by the rear mirror of the victim’s vehicle; and (c) it is presumed that the victim and the Defendant
C. Ultimately, the part of the witness Nonindicted 13 and Nonindicted 5’s statement made by a witness, who was designated as a criminal for the damage of property during the crime identification process without meeting the procedure to be observed in order to enhance the credibility thereof, cannot be ruled out that the possibility that other criminal was committed by the defendant, not the defendant, was committed, and it is difficult to recognize its credibility because there are no other circumstances to suspect the defendant as a criminal, and it is not sufficient to recognize the defendant as a criminal solely with the description of the above investigation report and the image of the vehicle photograph. Unless there is any evidence to prove that the defendant committed the crime of damage of property around August 18, 2008, it is difficult to view that the charge on the damage of property was proven to the extent that there is no reasonable doubt.
Therefore, this part of the facts charged constitutes a time when there is no proof of crime, and thus, is acquitted under the latter part of Article 325 of the Criminal Procedure Act.
1. Summary of grounds for the medical treatment and custody application;
The summary of the facts constituting the instant medical treatment and custody is as follows: in a state where the applicant for the medical treatment and custody lacks the ability or ability to make decisions on the change of things due to shock disorder, such as receiving hospitalized treatment from the Dongnam Mental Hospital Hospital located from January 26, 2007 to April 12, 2007, the applicant for the medical treatment and custody under the Medical Treatment and Custody Act from around March 26, 2007, as he/she received from the Dongnam Mental Hospital Hospital located in Kim Jong-si 117, Kim Jong-si, to receive hospital treatment due to shock disorder, etc., each
2. The judgment of this Court
A. Medical treatment and custody is a form of anti-human and liberal security measures to accommodate mentally ill offenders with a mental disorder risk of recidivism in a medical treatment and custody facility to treat and improve them, facilitate their rehabilitation into society, and thereby promoting the safety of the general public and society.
In light of the fact that medical treatment and custody for mentally ill offenders is premised on the infringement of personal liberty in order to promote social safety and entails irregular compulsory treatment within the period of confinement at a medical treatment and custody facility (15 years), it is necessary to carefully consider whether the court's decision on whether to grant medical treatment and custody conforms to the proportionality principle (see Constitutional Court Decision 2003HunBa1, Feb. 3, 2005, etc.).
B. (1) According to the records of this case, ① a person subject to medical treatment and custody has been subject to medical treatment and custody from January 26, 2007 to April 12, 2007, upon being hospitalized in the Dong mental hospital located in Kim Jong-dong 117, Kim Jong-si, and received several medical treatment for mental illness, such as impulse culposis disorder, etc. on several occasions. ② A person subject to medical treatment and custody has been sentenced to a fine of KRW 700,00 as a crime of injury at the Changwon District Court around September 18, 2008; ② a person subject to medical treatment and custody has been sentenced to a fine of KRW 10,00 as a crime of injury, property damage, etc. on more than one occasion; (3) a person subject to medical treatment and custody has been charged with larceny on more than one occasion after being prosecuted (the Busan District Court 2004Da588, 204, 204, 2004).
(2) However, according to Non-Indicted 14's statement on the other hand, it is difficult to see that the candidate for medical treatment and custody is a serious crime that may pose a big risk to society's safety. Although the candidate for medical treatment and custody again commits an offense under Articles 10 and 11 of the judgment after the prosecution of this case, he was transferred to voluntary treatment for shock disorder at the time. ② Although the candidate for medical treatment and custody was under the control of cerebral dysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysysys.
(3) Furthermore, the symptoms of mental illness, such as exchange, exchange, and mental franchising, etc., of a candidate for a medical treatment and custody do not have to be confirmed, but it appears that the candidate for a medical treatment and custody has committed a crime as stated in its reasoning because he/she was faced with excessive gathering or disregarding his/her blood donation. On the other hand, the candidate for a medical treatment and custody in substitution for each of the crimes in this case, and in particular, he/she seems to have been faithfully receiving mental evaluation and treatment in preparation for the recurrence of symptoms of shock disorder or the progress of illness. Furthermore, the crimes in paragraphs 1 and 5 of the above judgment among the crimes that are the cause of medical treatment and custody have been committed in mind that the applicant for a medical treatment and custody assistance in another person, and the defendant was unable to make a blood donation any longer after hearing his/her speech that he/she cannot make a blood donation, and if he/she finished a blood donation in another region, there is no need to prevent a large number of crimes above imprisonment without prison labor or any other excessive problems, and there is no need to help in the present blood donation.
C. In full view of the above rehabilitation intent of a candidate for a medical treatment and custody, family’s economic capability including the candidate for a medical treatment and custody, social risk and degree of the crime indicated in the facts of the reason for the medical treatment and custody, the principle of proportionality to be particularly considered in the decision of the disposition of medical treatment and custody, and the possibility of future treatment and improvement in the relationship with his family, etc., the candidate for a medical treatment and custody should be deemed to have sufficient possibility of improving or treating the mental illness as well as his/her dynamic behavior through continuous and appropriate treatment and assistance from his/her family. Furthermore, considering that the candidate for a medical treatment and custody still has no record of being sentenced to a suspended sentence or more even though he/she has a mental disorder, if re-offending again to the applicant for a medical treatment and custody, he/she can be subject to criminal punishment through the cancellation of suspended sentence, etc., and if he/she gives his/her opportunity not to voluntarily repeat the crime with his/her family and probation officer’s efforts through social treatment, it would be reasonable to regulate his/her behavior and take preventive measures.
Therefore, the evidence submitted by the prosecutor in this case alone is insufficient to deem that the applicant for a medical treatment and custody facility needs to provide medical treatment and risks of re-offending, and unless there is any other evidence to acknowledge it, the claim for the medical treatment and custody in this case is therefore groundless. Therefore, all of the claims for medical treatment and custody in this case are dismissed in accordance with the latter part
It is so decided as per Disposition for the above reasons.
Judges Park Jong-hee (Presiding Judge)