Defendant

Both parties

Park Jong-be (prosecution) and South Korean court (public trial)

Law Firm Round, Attorney Lee In-bok

Cheongju District Court Decision 2013Ma1612 Decided May 16, 2014

All appeals filed by the defendant and prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendant

1) misunderstanding of facts (as to the violation of the Mental Health Act)

The defendant only hospitalized mentally ill persons in an isolation ward established on the third floor of the hospital of this case so that they do not suffer damage to general patients, and did not accept the above mentally ill persons.

2) misunderstanding of legal principles (as to the violation of Mental Health Act)

A) Whether the requirements for establishment under Article 55 subparag. 6 and Article 43(1) of the Mental Health Act are satisfied

Article 55 Subparag. 6 and Article 43(1) of the Mental Health Act shall be construed only to apply only to cases where a mentally ill person is hospitalized for the purpose of treatment of mental illness. As stated in this part of the facts charged, the cases where a person is hospitalized in a general hospital for the purpose of treatment of acute diseases, other than mental illness, do not constitute “admitting a mentally ill person at a place other than facilities where medical care for the mentally ill person can be provided” under the above provision. Thus, the Defendant’s act is not recognized as constituting the elements of

B) Whether the act was legitimate

The defendant's act of treating a acute disease by hospitalizing a mentally ill person in the instant hospital constitutes an act under Article 15 (1) of the Medical Service Act that prescribes the duty of medical personnel to provide medical treatment or a justifiable act that does not go against social rules.

C) Whether illegality is recognized

Since the Defendant did not recognize that the act of hospitalized the instant hospital and treating the acute disease was illegal, the Defendant cannot be punishable by Article 16 of the Criminal Act.

3) The assertion of unreasonable sentencing

The punishment of the lower court (one year and six months of imprisonment, three years of suspended execution, and 200 hours of community service) is too unreasonable.

(b) Prosecutors;

The sentence of the court below is too unhued and unfair.

2. Determination on the grounds for appeal

A. As to the Defendant’s assertion of misunderstanding of facts (whether the instant hospital accepted the mentally ill person)

The court below duly admitted and examined the following circumstances, namely, ① the Defendant was requested to provide treatment to the above hospital from ○○ Hospital, etc., which was a mental medical institution, and hospitalized the mentally ill person in an isolation hospital on one of the third floor of the instant hospital; ② the entrance of the above isolation hospital was installed with locking devices; ③ two employees who were in the position of protecting the mentally ill person outside of the said hospital were in charge of providing treatment to the above hospital at all times until the hospital was hospitalized; ④ The Nonindicted Party, the managing director of the instant hospital, was in charge of the instant hospital, and the Defendant, who was in charge of the instant hospital, was in charge of the installation of isolation room on the second floor of the hospital. The Defendant, who was in charge of the instant isolation room, was in charge of the instant hospital’s entrance and treatment. The Defendant, who was in fact in charge of the instant isolation room, was in charge of the instant hospital’s entrance and treatment for the purpose of opening the hospital’s isolation room on the second floor.

[B] A defendant's defense counsel asserts to the effect that each of the above provisions violates the principle of clarity in the principle of no punishment without law because the meaning of "acceptance" under Articles 55 subparagraph 6 and 43 (1) of the Mental Health Act is unclear. However, considering the legislative purpose and purport of each of the above provisions to guarantee the dignity and value of a mentally ill person as a human being by guaranteeing the right to receive optimum treatment and protection of a mentally ill person and not being treated unfairly on the ground that the mental patient has a mental illness, comprehensively taking into account the following: (a) Articles 43 (1) and 55 subparagraph 6 of the Mental Health Act; (b) Articles 43 (1) and 45 subparagraph 6 of the same Act; (c) Articles 43 (1) and 55 subparagraph 6 of the same Act; and (d) Articles 43 (1) and 55 subparagraph 6 of the same

B. As to the Defendant’s assertion of misapprehension of legal principle

1) Whether the requirements for establishment under Article 55 subparag. 6 and Article 43(1) of the Mental Health Act are satisfied

A) Article 55 Subparag. 6 of the Mental Health Act provides that “a person who, in violation of Article 43(1), has accommodated a mentally ill person in a place other than a facility under this Act or other Acts and subordinate statutes” shall be punished. Article 43(1) of the Mental Health Act provides that “No person shall accept a mentally ill person in a place other than a facility where medical care for a mentally ill person may be provided under this Act or other Acts and subordinate statutes.”

A facility that can accommodate a mentally ill person under the Mental Health Act has a mental medical institution or mental health sanatorium under Article 3 subparag. 3 and 5 of the Mental Health Act. The instant hospital is not a mental medical institution under the Mental Health Act because it fails to meet the facility standards, etc. of a mental medical institution under Article 12(1) of the Mental Health Act due to absence of a mental health specialist, etc., and is not a mental health sanatorium, nor does it constitute a facility that can provide medical care to a mentally ill person under other Acts and subordinate statutes.

Therefore, insofar as the instant hospital is not a facility that can provide medical care to mentally ill persons under the Mental Health Act or other Acts and subordinate statutes, the act of the Defendant to accommodate mentally ill persons in the instant hospital constitutes a constituent element of the said provision.

B) The Defendant argues that Article 5 subparag. 6 and Article 43(1) of the Mental Health Act only applies to cases where a mentally ill person is hospitalized or admitted for the purpose of treating mental illness. As such, the foregoing provision does not apply to cases where a person is hospitalized in a general hospital for treatment of acute diseases, other than mental illness, as indicated in the facts charged in this part.

(1) Article 55 subparag. 6 of the Mental Health Act and Article 43(1) of the same Act merely punish a mentally ill person at a place other than the facilities where the mental patient can undergo medical treatment under the Mental Health Act or other Acts and subordinate statutes. (2) The legislative purpose and purport of the above provision are to ensure the dignity and value of the mentally ill person by guaranteeing the right of optimum treatment and by preventing the mental patient from being accommodated on the ground that there is no need for medical treatment. Accordingly, it is reasonable to interpret that the above provision should be imposed on the mentally ill person as well as on the case where the mentally ill person is accommodated for purposes other than mental treatment (see, e.g., Supreme Court Decision 200Da3244, Apr. 2, 2006).

2) Whether the act was legitimate

Article 20 of the Criminal Act provides that "any act that does not violate the Acts and subordinate statutes, acts due to work, or other social norms shall not be punishable." Whether a certain act is justified as a legitimate act should be reasonably decided depending on specific cases. It must meet the following requirements: (a) legitimacy of the motive or purpose of the act; (b) reasonableness of the means or method of the act; (c) balance between the protected interests and the infringed interests; (iv) urgency; and (v) supplementaryness that there is no other means or method than the act (see Supreme Court Decision 98Do1869, Feb. 23, 199, etc.).

(4) In light of the legislative purpose and purport of Article 55 subparag. 6 of the Mental Health Act and Article 43(1) of the same Act, the mental patient was hospitalized at the instant hospital, and the patient’s share of the mental patient was approximately 30% of the total hospitalization of the instant hospital. The above mental patient appears to have been hospitalized at the instant hospital for economic purposes to increase the amount of the hospital’s income, and the Defendant appears to have been treated unfairly on the ground that it could not be admitted to the hospital on the ground that it could not be admitted unfairly on the ground that it could not be protected as human dignity and value of the mentally ill person because it could not be considered to have been admitted to the hospital, and that it could not be considered that the mental patient’s treatment of the mentally ill person could not be admitted to the hospital because it could not be considered to have been admitted unfairly on the ground that it could not be admitted to the hospital’s own interest in the treatment of the mentally ill person because it could not be considered to have any other urgent interest in the treatment of the mental patient.

3) Whether to recognize illegality

Article 16 of the Criminal Act provides that "the act of misunderstanding that one's act does not constitute a crime under Acts and subordinate statutes shall not be punishable only when there is a justifiable ground for misunderstanding" does not merely mean a site of law, but it means that it shall not be punishable if there is a justifiable ground for misunderstanding that one's act does not constitute a crime under Acts and subordinate statutes in general, but in its special circumstances, misunderstanding that it does not constitute a crime under laws and subordinate statutes, and that it shall not be punishable (see Supreme Court Decision 2000Do1696, Jan. 25, 2002

The Defendant asserts that the Defendant was not a crime in the event of hospitalized a mentally ill person for the purpose of treatment of other diseases than mental illness. However, in light of the following: (a) the circumstance or motive leading up to the confinement of the mentally ill person in the instant hospital; (b) the proportion of the mentally ill person among all inpatientss of the instant hospital; (c) the Defendant had long been engaged in work related to the operation of the hospital; and (d) continued to isolate the mentally ill person even after receiving a corrective order regarding the isolation of the mentally ill person within the instant hospital from △△ group; and (b) it is difficult to deem that the circumstance alleged by the Defendant alone did not have the awareness of illegality or that the Defendant’s act constitutes

C. As to the assertion of unreasonable sentencing by the defendant and prosecutor

The fact that the Defendant recognized the embezzlement of this case and returned all the embezzled amounts, and the Defendant admitted the mentally ill person to the hospital of this case, but did not engage in illegal acts such as harsh treatment against the mentally ill person, etc. is considered favorable to the Defendant.

However, the instant crime was committed by the Defendant, as the head of △△△△ Hospital, by putting the Defendant’s family members, who do not work at the instant hospital, on the basis of supervising affairs such as personnel affairs, accounting, and fund management of the instant hospital, and embezzled the amount of KRW 180 million in total as benefits to the said hospital. Even if there were no human and material facilities available for medical care for mentally ill persons, the said hospital’s isolation of mentally ill persons from other mental medical institutions under the name of treating acute diseases in the instant hospital, is a case where the instant hospital is isolated from the instant hospital. In light of the period of each of the instant crimes, the degree of benefits acquired by the Defendant by each of the instant crimes, the crime was not less complicated. The Defendant appears to have established and operated the instant hospital through the △△△△△△ Hospital Foundation, a non-profit medical personnel, but appears to have been practically pursuing personal profits through the instant embezzlement, and the Defendant was punished even before the establishment of the medical institution and was subject to punishment, and the Defendant could not be deemed to have been aware of economic interests, such as the Defendant’s age of the instant disease.

3. Conclusion

Therefore, since the defendant and prosecutor's appeal are without merit, they are all dismissed under Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Kim Sung (Presiding Judge)

1) It is understood as meaning of hospitalization under the Mental Health Act.