In a case where hospitalization of a mentally ill person is made by a decision of the head of a mental medical institution without the consent of the legal guardian under Article 24 of the Mental Health Act / In a case where the hospitalization of a mentally ill person is made by a decision of the director of a mental medical institution, whether only the act of hospitalization by a mental health specialist or a written recommendation for hospitalization distinct from the decision of hospitalization by the director of a mental medical institution can be punished as an unlawful confinement (negative in principle)

Article 276(1) of the Criminal Act, Article 2(2) of the Punishment of Violences, etc. Act, Article 2(1) (see current Article 2(2) and (5) (see current Article 2(5) of the Act on the Improvement of Mental Health and the Support for Welfare Services for Mental Patients) and Article 2(1) of the Mental Health Act (wholly amended by Act No. 14224, May 29, 2016) (see current Article 2(2) and (5) of the Act on the Improvement of Mental Health and the Support for Welfare Services for Mental Patients), Article 22(1) (see current Article 40(2) of the Act on the Improvement of Mental Health and the Support for Welfare Services for Mental Patients) and Article 24(1) (see current Article 43(1) and (2) of the Act on the Support for Welfare Services for Mental Patients and the Support for Welfare Services for Mental Patients Persons).

Supreme Court Decision 200Do4415 Decided February 23, 2001 (Gong2001Sang, 813) Supreme Court Decision 2015Do8429 Decided October 29, 2015 (Gong2015Ha, 1858)

Defendant 1 and one other

Prosecutor

Law Firm Squa et al.

Gwangju High Court ( Jeonju) Decision 2013No112 decided October 15, 2013

The appeal is dismissed.

The grounds of appeal are examined.

1. As to the charge of death by confinement of the Defendants

A. The conviction in a criminal trial shall be based on evidence with probative value, which makes it possible for a judge to have a conviction true beyond a reasonable doubt, and if there is no such proof, the conviction cannot be rendered even if there is a suspicion of guilt against the defendant (see, e.g., Supreme Court Decision 2006Do735, Apr. 27, 2006). Furthermore, the selection of evidence and the probative value of evidence based on the premise of fact-finding belong to the free judgment of the fact-finding court (Article 308 of the Criminal Procedure Act).

B. In light of the facts stated in the judgment of the court of first instance, it is difficult to readily conclude that the cause of the death of Nonindicted Party 1 was a low temperature certificate as indicated in this part of the facts charged, on the grounds the following grounds: (a) the statement about the body of a police officer in charge of the autopsy and on-site conditions; (b) the process of death due to a low temperature certificate; and (c) the difference between Nonindicted Party 1’s death and the process of death; and (b) the possibility of existence of other causes of death, such as the cause of death, such as the cause of death, are difficult to conclude that Nonindicted Party 1’s death was a low temperature certificate indicated in this part of the facts charged; and (b) it is difficult to conclude that Nonindicted Party 1 died due to isolation and coercion of measures taken against the Defendants against Nonindicted Party 1 or negligence in the patient management; and (c) Defendant 1 was unlikely

In addition, the lower court, on the grounds indicated in its reasoning, rejected the prosecutor’s allegation of misconception of facts and misapprehension of legal principles on the first instance judgment.

C. Examining the grounds of appeal, which are erroneous in the judgment of the court below, in light of the reasoning of the judgment below, this is merely an error in the misapprehension of the judgment of the court of fact-finding as to the selection of evidence and probative value which are the basis of the judgment of the court of fact-finding, and the reasoning of the judgment of the court of fact-finding and the judgment of the court of first instance maintained by the court below is examined in light of the records, and the above judgment of the court of fact

In addition, as long as the lower court did not err in its judgment, the lower court’s determination on whether Nonindicted 1’s isolation and coercion constitutes a justifiable act does not affect the conclusion of the judgment, and thus, the allegation in the grounds of appeal disputing the lower court’s determination on this part is rejected without further review.

2. As to the violation of the Punishment of Violences, etc. Act by Defendant 1 and the charges of confinement

A. As to the violation of the Punishment of Violences, etc. Act (joint confinement)

(1) Article 24(1) of the Mental Health Act (wholly amended by Act No. 14224, May 29, 2016; hereinafter the same) provides that the head of a mental medical institution, etc. may hospitalization of a mentally ill person only where two legal guardians consent to hospitalization of the mentally ill person and the director of the mental health department determines that hospitalization is necessary. In the case of hospitalization, the director of the mental health medical institution, etc. must obtain written consent from the legal guardian and documents confirming that the person is the legal guardian. Paragraph (2) of the same Article provides that the director of the mental health department shall obtain written consent from hospitalization prescribed by Ordinance of the Ministry of Health and Welfare when the hospitalization of the mentally ill person is required. Paragraph (1) of the same Article provides that “Where the patient suffers from a mental illness that is likely to receive hospitalized treatment or recuperation in a mental medical institution, etc.” or “where hospitalization is necessary for the patient’s own health or safety, or for the safety of another person, the director of the mental health department, etc. shall attach to the written consent of hospitalization.

In light of the purport of Article 22(1) of the Mental Health Act that provides that the legal guardian of a mentally ill person shall not be hospitalized without a diagnosis by a mental health specialist, and the basic ideology of Article 2(1) and (5) that all mentally ill persons shall be guaranteed dignity and value as human beings and shall always encourage voluntary hospitalization of a mentally ill person in need of hospital treatment. In the case of hospitalization by a legal guardian prescribed in Article 24, two legal guardians consent to the hospitalization, and accordingly, the director of a mental medical institution determines hospitalization (see Supreme Court Decisions 200Do4415, Feb. 23, 2001; 2015Do8429, Oct. 29, 2015).

Therefore, even if the hospitalization of a mentally ill person was conducted by the decision of the director of the medical institution without the consent of the legal guardian, unless there are special circumstances such as the mental health medical specialist’s diagnosis differently from the fact, or joint or joint admission of the director of the medical institution for mental illness with the director of the medical institution for mental illness by force, it cannot be punished as a crime of confinement on the ground that only the act of examination of hospitalization or the preparation of a recommendation for hospitalization by the director of the medical institution for mental illness, which is distinguishable from the decision of hospitalization by the director of

(2) On the grounds indicated in its reasoning, the lower court determined that the evidence submitted by the prosecutor alone revealed that Defendant 1 did not consent to hospitalization of the lawful legal guardian at the time of hospitalization of Nonindicted 2 and Nonindicted 3, or that it is difficult to recognize that Defendant 1 conspiredd with Nonindicted 4, etc., the actual operator of the instant mental medical institution, and Nonindicted 2 and Nonindicted 3, and thus, cannot be punished for the crime of confinement, and rejected the Prosecutor’s allegation in the grounds of appeal for misconception of facts and misapprehension of legal doctrine

(3) Examining the grounds of appeal disputing the fact-finding in light of the reasoning of the judgment below, this is nothing more than an error of the judgment of the court below on the selection and probative value of evidence which belongs to the free judgment of the fact-finding court. In addition, even though examining the reasoning of the judgment below in light of the aforementioned legal principles and the relevant legal principles as seen earlier and the records, some of the reasoning of the judgment below are insufficient, but there is no error of exceeding the bounds of the principle of free evaluation of evidence contrary to logical and empirical rules, or by misapprehending the legal principles

B. As to the portion of confinement (preliminary charge)

(1) On the grounds indicated in its reasoning, the lower court found Defendant 1 not guilty of the charges added in the preliminary charges in the lower court, on the grounds that: (a) the act of Defendant 1 ordering Nonindicted 2 to isolate Nonindicted 2 by taking into account the following circumstances: (b) it is reasonable to deem that the act of Nonindicted 2 was a justifiable act under the Mental Health Act, even if Defendant 1 knew of Nonindicted 2’s assault damage; (c) it is difficult to deem that the act of not releasing the above isolation measure was an illegal act not required under the Mental Health Act; and (d) it cannot be deemed that Defendant 1’s coercion order or medication cannot be deemed to constitute a crime of confinement solely on the basis of Defendant 1’s coercion order or medication.

(2) Examining the grounds of appeal disputing the fact-finding in light of the reasoning of the lower judgment’s reasoning, this is nothing more than an error of the lower court’s determination on the evidence selection and probative value, which actually belongs to the free judgment of the fact-finding court. In addition, even if examining the reasoning of the lower judgment in light of the aforementioned legal principles and the relevant legal principles as seen earlier, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by misapprehending the legal doctrine on the subject of

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 Kim So-young (Presiding Justice)