(영문) 서울고등법원 2019.4.18.선고 2018노2985 판결

However, the execution of each of the above punishment against the Defendants shall be suspended for two years from the date this judgment became final and conclusive.

Reasons

1. Summary of grounds for appeal;

(a) misunderstanding of facts and misunderstanding of legal principles [Violation of the Punishment of Violences, etc. Act (joint residence intrusion, joint confinement)]

When the Defendants were to be in charge of transferring a mentally ill person as an employee of an emergency patient transport service company to a mental medical institution, and the legal guardian received a request for the transfer of the mentally ill person from the legal guardian, they have transferred the patient after confirming whether there was two legal guardians’ request through family relation certificate and the statement of related persons as prescribed by the relevant Acts and subordinate statutes. At the same time, there was no separate examination as to whether there was a diagnosis that the hospitalization of a psychiatrist was necessary in the process of the transfer, since there was a case for diagnosis of mental illness, and there was a case for hospitalization. At the time of the instant case, the Defendants confirmed the victim’s mother and the legal guardian’s consent to the hospital, and confirmed the victim’s consent by phoneing the victim’s children, and found the victim’s house together with the victim’s request, and the victim opened the door at the time and transferred the victim to the mental hospital and the mental hospital. Therefore, the Defendants did not have any intention to interfere with his residence.

B. Unreasonable sentencing

The punishment sentenced by the court below (defendants YO: 2 years of suspended sentence for one year of imprisonment, and 2 years of suspended sentence for six months of imprisonment) is too unreasonable.

2. Determination

A. Judgment ex officio due to changes in indictment

In the first instance trial, the prosecutor tried to leave the victim to A Hospital located in the Namdong-gu Incheon Metropolitan City at around 15:28 of the facts charged against the Defendants in violation of the Punishment of Violences, etc. Act (joint confinement) and led the Defendants to be hospitalized not later than 20:00 of the date against the intent of the victims. Accordingly, the Defendants jointly detained the Defendants. The part of the judgment below should be reversed, on the ground that “The Defendants were able to take custody of the victims to A Hospital located in the Namdong-gu Incheon Metropolitan City at around 15:28 of the day, and the Defendants jointly detained the victims.” The Defendants filed an application for changes to a hospital to exclude the part of the period hospitalized in the hospital from those subject to confinement. Accordingly, the part of the judgment below on the Defendants’ violation of the Punishment of Violences, etc. Act (joint confinement) cannot be maintained, and since each of the above crimes and the remaining crimes as stated in the judgment of the court below are dealt with as concurrent crimes under Article 37 of the Criminal Act.

However, the Defendants’ assertion of misunderstanding of facts and misapprehension of legal principles is still subject to the judgment of this court, and this is examined below.

B. As to the assertion of mistake of facts and misapprehension of legal principles, this part of the grounds for appeal is that the Defendants’ act of entering the victim’s house and leading the victim and transferring the patient to the hospital was designed to hospitalization of the mentally ill person at the hospital upon request of two legal guardians in accordance with the relevant Acts and subordinate statutes as an employee of the first-aid business entity providing emergency patient transport services, and thus, the Defendants did not establish a residential intrusion or have no intention to commit the crime of intrusion upon residence or confinement.

2) However, since the crime of intrusion upon a residence is practically a protected legal interest, the crime of intrusion upon a residence of a person can be prejudicial to the residents' explicit or implied intent and thereby prejudice the peace of the actual residence which the residents enjoy (see Supreme Court Decision 2009Da9548, Sept. 2, 2009).

10. Sentence 209Do435, Supreme Court Decision 2017Do16073, Dec. 13, 2017, etc.) The crime of confinement is one of the legal interests protected by the law, so it is impossible for a person to leave a specific area, or it is extremely difficult for the person to do so, thereby satisfying the constituent elements of the crime (see Supreme Court Decision 99Do5286, Feb. 11, 200). Thus, as long as the defendants knew that their acts constitute the above constituent elements, they were established with the consent of the court below, and were lawfully adopted and investigated, the court below's act was conducted against the victim's will by entering a hospital, and the defendant and co-defendant 10, 00, 00, 00, 00, 00, 00, 00, 00, 00, 00, 00, 00, 00, 20, 20, 2, 2, 000.

Therefore, the Defendants’ act was not only an invasion upon a residence against the victim’s will, thereby impairing the peace of residence, and it restricted the victim’s freedom of action by making it impossible to get the victim out of the first-aid vehicle. The crime of intrusion upon residence and confinement are all the objective elements of the crime of intrusion upon residence and confinement, and the Defendants committed the act without recognizing it, and thus, it can be sufficiently recognized as a subjective element of the crime.

3) Meanwhile, the Defendants’ assertion that the Defendants’ act was made as part of the emergency patient transport service for hospitalization of a mentally ill person pursuant to the law, and thus, the Defendants’ act was deemed as a legitimate act, or as a mistake that it did not constitute a crime as a legitimate act pursuant to the law.

There is room for doing so, this is examined.

As provided for in Article 10 of the Constitution, every citizen shall have dignity and value as human beings and have the right to pursue happiness. Article 34(5) of the Constitution also provides that the State shall protect the physically handicapped persons and citizens who have no means of living due to illness, old age, or any other reason, under the conditions as prescribed by Act. According to such constitutional spirit, the Act on the Improvement of Mental Health and the Support for Welfare Services for Mental Patients (hereinafter referred to as the “mental Health Act”) provides for the rehabilitation, welfare, guarantee of rights, etc. of mentally ill persons, shall guarantee the dignity and value as human beings (Article 2(2) of the Mental Health Act), and shall have the right to directly determine and decide on matters concerning their body and property (Article 2(7) of the Mental Health Act), and even if a mentally ill person is a mentally ill person, the basic ideology that hospitalization of mental health improvement facilities, such as mental medical institutions, mental health sanatoriums, and mental rehabilitation facilities, should be recommended to be hospitalized according to his/her own will (Article 2(6) of the Mental Health Act).

Under this ideology, the Mental Health Act requires mentally ill persons to be hospitalized in mental health promotion facilities.

Articles 41 (Voluntary Hospitalization, etc.) and 42 (Hospitalization, etc.) of the same Act provide for the types and requirements of friendship in accordance with Articles 41 (Voluntary Hospitalization, etc.) and 50. Among them, Article 41 (Voluntary Hospitalization, etc.) and Article 42 (Hospitalization, etc. by Person Responsible for Protection), and Articles 43 (Hospitalization, etc. by Person Responsible for Protection), 44 (Hospitalization by Person Responsible for Protection), 50 (Emergency Hospitalization by Metropolitan Autonomous City Mayor, Special Self-Governing Province Governor, Special Self-Governing Province Governor, and head of Si/Gun/Gu), and 50 (Emergency Hospitalization) provide for hospitalization against the will of the person with mental illness. Among them, the Defendants asserted that the above Article 43 (Hospitalization, etc. by Person Responsible for Protection)

Article 43 (Hospitalization by Person Responsible for Protection) of the Mental Health Act provides that a mentally ill person may be hospitalized only where at least two persons responsible for protection apply for the hospitalization of the mentally ill person, and where a diagnosis is required by a psychiatrist, etc., by the decision of the head of the mental health medical institution, etc. In addition, the hospitalization by such person responsible for protection is limited to the hospitalization of the mentally ill person regardless of the mental patient’s intent. Therefore, even if the mentally ill person resists the hospitalization measures that meet these requirements, the exercise of physical strength within the reasonable scope deemed reasonable in light of the mental and social aspect is allowed (see Supreme Court Decision 200Do4415, Feb. 23, 2001). Such principle applies likewise to the transfer of the mentally ill person within the necessary scope for hospitalization.

However, Article 43 of the Mental Health Act, along with the above provision, provides that, except for the cases of emergency hospitalization under Article 50, a person shall not, without face-to-face diagnosis by a psychiatrist, hospitalization of a mentally ill person in a mental medical institution, etc. or extend the period of hospitalization. In full view of the above principles of the Constitution and the Mental Health Act, Article 68(1) of the Mental Health Act, which provides that the person responsible for protection of a mentally ill person shall not extend the period of hospitalization of a mentally ill person, as long as the person responsible for protection intends to have the mentally ill person hospitalized, the determination of hospitalization of the person in a mental medical institution, etc. by two persons responsible for protection as provided under Article 43 of the Mental Health Act, and the determination of hospitalization of the person in a mental medical institution, etc., conducted through the procedure of diagnosis by a psychiatrist, is essential for the purpose of hospitalization

However, according to the evidence duly adopted and examined by the court below, Co-defendant 10 of the court below, which requested the defendants to transfer the victim to a mental medical institution, and Hong 00 of the court below, did not have been hospitalized by the head of the mental medical institution, etc. through the procedure of application by two legal guardians as prescribed by Article 43 of the Mental Health Act and diagnosis by a psychiatrist until transfer of the victim to a mental medical institution and hospitalization by the time of the request for transfer to the mental medical institution. On September 12, 2017, the defendants were requested to transfer the victim from the above 00 p.m. to the mental medical institution. On September 12, 2017, the defendants did not confirm the fact that the consent by one of the legal guardians was obtained, and when transferring the victim from the hospital to A, two of the legal guardians were forced to move the victim to the hospital at home, and during that process, the court did not fully confirm whether there was hospitalization by the head of the mental medical institution, etc. after the request by two legal guardians as prescribed by Article 43.

Therefore, even if the Defendants’ act of putting the victims into custody against the victim’s will at home was conducted under the order of the legal guardian to regard the victim as a mentally ill person at the request of the legal guardian, or was in accordance with the business practices of the emergency patient transport service company, it cannot be deemed a justifiable act pursuant to the law since it did not meet the requirements prescribed under Article 43 of the Mental Health Act. Even if the Defendants believed that the Defendants could have forced the transfer of a mentally ill person solely with the consent of two legal guardians, the Defendants, who are specialized in the transfer of an emergency patient, did not confirm the necessary legal requirements at the time of hospitalization at the request of the legal guardian, and therefore, there is no justifiable reason for the Defendants to believe that their acts were legitimate acts.

4) Ultimately, the judgment of the court below which found all of the facts charged guilty is just, and there is no error of misconception of facts or misapprehension of legal principles as alleged in the grounds of appeal.

3. Conclusion

The judgment of the court below is reversed pursuant to Article 364 (2) of the Criminal Procedure Act without examining the defendants' assertion of unfair sentencing, on the grounds of ex officio reversal as seen above, and the following is again decided after pleading.

[Grounds for the judgment to be used again against the Defendants]

Criminal facts and summary of evidence

The summary of the facts charged by this court and the evidence thereof are as follows: "At around 15:28, the last part of the facts charged of violation of the Punishment of Violences, etc. Act (joint confinement) among the facts charged in the judgment of the court below, the defendant was hospitalized by around 20:00 on a day against the victim's will. Accordingly, the defendants jointly detained the victim. "The part of the judgment below (2: 1: 2: 3) was decided to be a A hospital located in the Namdong-gu Incheon Metropolitan City, Incheon, about 15:28, and the defendants jointly detained the victim. The defendants jointly detained the victim because "other than the alteration to the court below, it is identical to each corresponding column of the judgment below," and this is cited in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Article applicable to criminal facts;

Article 2(2)2 of the Punishment of Violences, etc. Act, Article 276(1) of the Criminal Act (Joint Confinement, Selection of Imprisonment, Selection of Imprisonment), Article 2(2)1 of the Punishment of Violences, etc. Act, Article 319(1) of the Criminal Act (Joint Residence, Selection of Imprisonment, Selection of Imprisonment), Articles 281(1), 276(1), and 30 of the Criminal Act (Occupancy or Injury caused by Arrest)

1. Aggravation for concurrent crimes;

Article 37 (Aggravation of Concurrent Crimes within the scope of Aggregate of Punishment for Injury by Arrest with the Gross Mutandis Punishment)

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following extenuating circumstances in favor of the reasons for sentencing)

1. Suspension of execution;

Article 62(1) of the Criminal Act provides that the Defendants engaged in the services of transporting emergency patients to the branch offices and employees of the private emergency medical center who are specialized in the services of transporting emergency patients shall, in spite of the performance of the services of transferring mentally ill persons to mental medical institutions at least two to three times a week from the families of mentally ill persons to mental medical institutions, without properly verifying whether they meet the requirements for hospitalization by a person responsible for protection under the Mental Health Act, intrudes on the residence of the victim and forced the victim to transfer the victim to another person and the victim to the same in the process. These points are disadvantageous to the Defendants.

On the other hand, the Defendants are in profoundly against the fact that the instant crime causes damage to the victim. The Mental Health Act is a special case for administrative hospitalization by the Special Self-Governing City Mayor, etc. (Article 44).

Self-Governing Mayor, etc. may request assistance from a 119-Gu emergency medical service worker in the course of diagnosing or hospitalized a person suspected of having mental illness (Article 44(9)). In the case of emergency hospitalization, Article 50(2) provides that police officers or first respond to mental illness patients (Article 43). However, in the case of hospitalization by a legal guardian, the method of transferring a mentally ill person to a mental medical institution in the course of diagnosis and hospitalization of a mentally ill person is not specifically prescribed. As alleged by the Defendants, there seems to have been some illegal practices of transferring a mentally ill person to a mental medical institution under the pretext of receiving diagnosis by a psychiatrist or forcing hospitalization. Although such practices should be nonexistent, the Defendants were deemed to have committed a crime with no knowledge that such practices were wrong as employees of the business entity responsible for providing such services, and there is no need to conclude that the above Defendants were more favorable to the victim of this case, and thus, the victim and the victim of this case cannot be deemed to have been sentenced to a suspended sentence of 00-year punishment. Furthermore, the Defendants and the victim of this case still did not appear to have been convicted.

In full view of these circumstances and the Defendants’ age, character and conduct, environment, relationship with the victim, motive, means and consequence of the crime, and the circumstances after the crime, the punishment as ordered shall be determined.

It is so decided as per Disposition for the above reasons.

Judges

Judges next to the presiding judge;

Kim Min-soo -

Maximum tin

Note tin

1) In addition to the part of the grounds of appeal by which the victim was born to the vehicle, the part of the appeal by which the victim was hospitalized to the mental hospital shall be reduced to the defendants.

The portion of the mistake that it is an accomplice in the crime of gold was withdrawn after the amendment of the indictment by the prosecution.

심급 사건

-수원지방법원 2018.10.11.선고 2018고합166

서울고등법원 2019.4.18.선고 2018노2985

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