[1] The purport of Articles 55 subparag. 6 and 43(1) of the former Mental Health Act / Even for the purpose of medical treatment or protection of a mentally ill person, in a case where the hospitalization or admission of a mentally ill person to a facility other than a lawful medical care facility under the former Mental Health Act, etc. is placed under the protection, management, and control of the operator or employee of such facility for a given period, and thus is in violation of medical care suitable for mental illness under Articles 5 subparag. 6 and 43(1) of the former Mental Health Act, whether the aforementioned provision constitutes “taking of a mentally ill person” prohibited by the said provision (affirmative), and whether the hospitalization or admission must be against the free will of the inmate or to the extent that the inmate’s physical freedom is deprived (negative)

[2] In a case where a defendant who operates a hospital A, which is not a mental medical institution under the former Mental Health Act, was prosecuted for violating the former Mental Health Act on the ground that he hospitalized a mentally ill person into the isolation ward room of the hospital A by receiving a request for medical treatment of acute diseases from a hospital B, etc., which had been admitted to the above hospital for the purpose of medical treatment of mental illness, and “hospitalize a mentally ill person in a place other than the facility where medical care for a mentally ill person may be provided under the former Mental Health Act,” the case holding that in light of all circumstances, the defendant's act of taking the mentally ill person into the hospital A constitutes acceptance of a mentally ill person by a facility other than a lawful medical care facility prohibited under

[1] Article 5 subparag. 6 and Article 43(1) of the former Mental Health Act (amended by Act No. 1310, Jan. 28, 2015; hereinafter the same) prohibit “a mentally ill person” from accepting a mentally ill person in a place other than a facility where medical care for mentally ill persons may be provided under this Act or other Acts and subordinate statutes, and require punishment for violations.

In light of Articles 1, 2(2), (5), and (6), 3 subparag. 2, 43(1), and 55 subparag. 6 of the former Mental Health Act, Article 55 subparag. 6, and Article 43(1) of the former Mental Health Act provides medical care suitable for mental illness by having mentally ill persons hospitalized in or enter mental health facilities, namely, mental medical institutions, mental health sanatoriums, rehabilitation facilities for mentally ill persons, and medical care facilities prescribed by other Acts and subordinate statutes, thereby ensuring the right to optimum treatment and protection of mentally ill persons, thereby providing the purpose and basic ideology of the former Mental Health Act to ensure the dignity and value of mentally ill persons as human beings. Accordingly, even for the purpose of treatment and protection of mentally ill persons, it is reasonable to view the mentally ill person to be hospitalized in facilities, other than legitimate medical care facilities prescribed by the former Mental Health Act, and to freely protect or control the operators or employees of such facilities for a given period against his/her will, not to be subject to confinement under Article 5(1)4 of the former Mental Health Act.

[2] In a case where the Defendant, who operated a hospital A, not a mental medical institution under the former Mental Health Act (amended by Act No. 13110, Jan. 28, 2015; hereinafter the same), was indicted for violating the former Mental Health Act on the ground that he received a request from a hospital B, etc., which is a mental medical institution, for treatment of a mental illness, hospitalized the mentally ill person into an isolation ward of the hospital A, and “hospitalize the mentally ill person at a place other than a facility which is able to provide medical care for the mentally ill person under the former Mental Health Act” and was indicted for violation of the former Mental Health Act, the case affirming the purport that, even if a medical institution, other than a mental medical institution, was hospitalized, if the hospitalization took place within the best extent necessary for the treatment of other serious diseases regardless of the mental disease, the Defendant’s act of accepting the mentally ill person from the hospital A constitutes “Admittance” as prohibited under Articles 55 subparag. 6 and 43(1) of the former Mental Health Act, but in light of all circumstances, the Defendant’s act of accepting the above provisions at the hospital.

[1] Articles 1, 2, 3, and 43(1) and 55 subparag. 6 of the former Mental Health Act (Amended by Act No. 1310, Jan. 28, 2015) / [2] Articles 43(1) and 55 subparag. 6 of the former Mental Health Act (Amended by Act No. 1310, Jan. 28, 2015)

Defendant

Defendant

Law Firm Enhancement, Attorneys Fishing Incarceration et al.

Cheongju District Court Decision 2014No470 decided November 7, 2014

The appeal is dismissed.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1, 2, and 3

A. Articles 55 subparag. 6 and 43(1) of the former Mental Health Act (amended by Act No. 1310, Jan. 28, 2015; hereinafter the same) prohibit “a mentally ill person to accept a mentally ill person in a place other than a facility where medical care for mentally ill persons may be provided pursuant to this Act or any other Act and subordinate statutes” and impose punishment for violations (hereinafter the above provisions referred to as “instant provisions”).

The basic ideology of the former Mental Health Act is to contribute to the improvement of citizens’ mental health by prescribing necessary matters concerning the prevention of mental illness and the medical treatment and rehabilitation of mentally ill persons (Article 1); all mentally ill persons shall be guaranteed the dignity and value of human beings and the right to optimum treatment and protection; with respect to a mentally ill person who requires hospitalized treatment, voluntary hospitalization shall always be encouraged; and a hospitalized mentally ill person shall be guaranteed free environmental conditions (Article 2(2), (5), and (6). Furthermore, the former Mental Health Act provides for mental health facilities for mentally ill persons, such as mental medical institutions, community rehabilitation facilities, and mental health sanatoriums (Article 3 subparag. 2); further, a mental medical institution refers to facilities for mentally ill persons under the Medical Service Act, such as hospitals and clinics established in compliance with the facility standards, etc. under Article 12(1) (hereinafter referred to as “psychos, etc.”); and a mental health sanatorium refers to facilities for promoting rehabilitation of mentally ill persons and mentally ill persons established in a mental medical institution without providing rehabilitation training to the community.”

In light of the above provisions of the former Mental Health Act, the provisions of this case provide adequate medical care for mental illness by hospitalized or committing a mentally ill person at mental health facilities, namely, mental medical institutions, mental health sanatoriums, rehabilitation facilities for mentally ill persons, and medical care facilities prescribed by other Acts and subordinate statutes, thereby ensuring the right to optimal medical care and protection for mentally ill persons and preventing them from being unfairly treated on the grounds of having mental illness. Thus, the purpose and basic ideology of the former Mental Health Act is to guarantee dignity and value as human beings of mentally ill persons. Therefore, even for the purpose of medical care and protection of mentally ill persons, it is reasonable to interpret the provisions of this case as the acceptance of mentally ill persons prohibited by the provisions of this case, in a case where medical care suitable for mental illness prescribed by the provisions of this case is provided under the protection, management, and control of the operators or employees of the relevant facilities for a certain period of time. It does not necessarily mean that the hospitalization or intention of the mentally ill person is against the free treatment of the inmate or that the inmate’s physical freedom of confinement is deprived of the inmate.

Meanwhile, criminal facts have to be proved to the extent that there is no reasonable doubt (Article 307(2) of the Criminal Procedure Act). However, the preparation of evidence and the probative value of evidence conducted on the premise of fact finding belong to the free judgment of the fact-finding court (Article 308 of the Criminal Procedure Act).

B. On the grounds indicated in its reasoning, the lower court determined as follows, and rejected the allegation in the grounds of appeal for misapprehension of legal principles and mistake of facts.

(1) In full view of the language and text of Articles 43(1) and 55 subparag. 6 of the former Mental Health Act, the structure with the relevant provisions, the ordinary meaning and usage of the concept of “acceptance”, and the legislative purpose and purport of the relevant provisions including the instant provisions, it cannot be deemed that the meaning and content of the expropriation stipulated in the instant provisions are unclear, and thus, it cannot be deemed that there is no clarity as a penal provision.

(2) ① Upon receiving the request for medical treatment from the mentally ill person (hereinafter “the mentally ill person of this case”), the Defendant hospitalized the instant mentally ill person in an isolation ward on the three floor of △△△△ Hospital (hereinafter “instant hospital”) that was confined to the instant hospital by the mental medical institution, ○○○ Hospital, etc. (hereinafter “the mentally ill person of this case”), and (2) the instant mentally ill person was installed at the entrance of the said isolation ward, and the staff of the name of the guardian is on a shift of duty to manage the entry of the instant mentally ill person, the Defendant was prohibited from entering the said isolation ward. ③ In addition, considering the circumstances as indicated in the judgment of the first instance court, including the circumstance that the instant mentally ill person could not be discharged until the doctor in charge of the instant hospital decided on the hospitalization, and could not return to the previous mental medical institution upon the request for medical treatment, and thus, could not return to the hospital, the Defendant’s admission of the instant mentally ill person of this case, as indicated in the judgment of the lower court.

(3) (A) As long as the instant hospital is not a facility that can provide medical care to mentally ill persons under the former Mental Health Act or other Acts and subordinate statutes, the Defendant’s act of accepting the instant mentally ill persons at the instant hospital constitutes the constituent elements of the instant provisions.

(B) In addition, according to the legislative purport and purpose of the provisions of this case, even where a mentally ill person is to be admitted for purposes other than the treatment of mental illness, it is reasonable to interpret the provisions of this case to be subject to regulation. ② The former Mental Health Act strictly limits the procedure and requirements for hospitalization in a mental medical institution, etc., the period of hospitalization, the procedure of discharge, etc. If it is possible to accommodate the mentally ill person without any specific restriction solely on the ground that the mentally ill person is treated as a acute disease, the above provision of the Mental Health Act may be avoided. ③ There is no circumstance to deem that the treatment of the mentally ill person in this case was terminated at the time of hospitalization or that the need for the treatment was resolved. In addition, it is also impossible to determine whether the mentally ill person in this case needs to be hospitalized properly due to the lack of a mental health specialist, and as a result, it is also impossible to determine whether the mentally ill person in this case needs to be hospitalized at the ○○ Hospital and other mental medical institutions for which the period of hospitalization expires.

In light of these circumstances, the defendant's argument in the grounds of appeal purporting that the above provision shall not apply to the case where the provisions of this case apply only to the case where the mentally ill person is hospitalized or admitted for the purpose of treatment of mental illness, not to the case where the person is hospitalized in a general hospital for treatment of acute diseases.

C. The allegation in the grounds of appeal disputing part of the fact-finding that became the basis for the lower court’s determination or reached its determination is nothing more than an error of the lower court’s determination as to the choice of evidence and probative value, which actually belongs to the lower court’s free judgment.

Meanwhile, examining the reasoning of the judgment below in light of the legal principles as seen earlier, if the hospitalization of a mentally ill person at a medical institution other than a mental medical institution is conducted within the best extent necessary for the treatment of other serious diseases regardless of mental illness, it is difficult to readily conclude that such act constitutes “Admittance” prohibited by the provisions of this case. Thus, the part of the court below’s explanation to the purport that the aforementioned act constitutes the elements of the provisions of this case immediately on the ground that the court below hospitalized the mentally ill person at a hospital other than a mental medical institution without setting the purpose of confinement.

However, as indicated in the reasoning of the lower judgment, the instant mentally ill person hospitalized at the instant hospital, as well as ○○ Hospital, was hospitalized in an isolation ward established on the third floor of the instant hospital in the absence of treatment or the need for medical care. Thus, unlike the case of hospitalization for only other acute diseases, it is necessary to continue to provide optimal treatment and protection for mental illness. In the absence of appropriate facilities and mental health specialists, treatment for mental illness was not provided at all, and there was a limited free discharge of the instant mentally ill person, such as the lower court’s recognition. Accordingly, in light of the legal principles as seen earlier, the lower court’s conclusion on the management and acceptance status of the instant mentally ill person who was hospitalized at the instant hospital, as seen earlier, should still be understood as having continued to constitute the period of accommodation of the instant hospital in the instant case, which is not a legitimate medical institution for mental illness such as the medical care for the instant mentally ill person, and thus, should still be viewed as having been prohibited from being hospitalized at the instant hospital.

Therefore, such conclusion of the court below is not erroneous in the misapprehension of legal principles as to the legislative purpose and purport of the former Mental Health Act, the acceptance and application of a mentally ill person under the former Mental Health Act, or exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, contrary to what is alleged in the grounds of appeal. In addition, the court below did not err in the misapprehension of legal principles as to the principle of clarity derived from the principle of no punishment without the law, or failing to exhaust all necessary deliberations, which affected the conclusion

2. As to the fourth ground for appeal

A. (1) The lower court determined that the Defendant’s act of accepting the instant mentally ill person in the instant hospital does not constitute an act under Article 15(1) of the Medical Service Act or a justifiable act that does not go against social norms, in light of the circumstances as seen earlier, such as the circumstance that the Defendant’s act of accepting the instant mentally ill person in the instant hospital was deemed to have been hospitalized in the instant hospital for the economic purpose of increasing the revenues of the instant hospital, and the degree of the instant mentally ill person’s acute disease is critical, or there is no urgent circumstance or necessity to receive treatment by being hospitalized in the instant hospital without a mental health specialist, and determined that the Defendant’s act does not constitute a mistake of law. In so doing, the lower court determined that the Defendant’s act did not constitute an act under Article 15(1) of the Medical Service Act or a justifiable act that does not go against social norms.

B. The allegation in the grounds of appeal disputing a part of the fact-finding that was based on or reached the judgment of the lower court is nothing more than an error of the lower court’s determination as to the choice of evidence and probative value, which belongs to the free judgment of the fact-finding court. Furthermore, even if examining the reasoning of the lower judgment in light of the aforementioned legal principles and the relevant legal principles as seen earlier, and the evidence duly adopted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding legitimate act and mistake of law, or by exceeding the bounds of the

3. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok (Presiding Justice)