Defendant 1 and nine others

Defendant 1 and six others and prosecutor

Long-term finance (prosecution) and joint trial (public trial)

Law Firm Man-woo et al.

Suwon District Court Decision 2014Ma314 decided November 6, 2014

Of the judgment of the court below, the part of conviction against the Defendants (including the part of acquittal in the grounds) and the part of acquittal against the Defendants 4 and 5 as to the violation of the Punishment of Violences, etc. Act (joint confinement) shall be reversed.

Defendant 1, in one year and six months of imprisonment, Defendant 2, and Defendant 3, Defendant 4, and Defendant 5, respectively, shall be punished by a fine of 10,00,000 won, Defendant 6, and Defendant 7, by a fine of 7,00,000 won, Defendant 8, Defendant 9, and Defendant 10, respectively, to a fine of 5,00,000 won.

In a case where Defendants 4, 5, 6, 7, 8, 9, and 10 did not pay each of the above fines, the above Defendants shall be confined in each of the labor site for the period calculated by converting KRW 100,000 into one day.

Defendant 4, Defendant 5, Defendant 6, Defendant 7, Defendant 8, Defendant 9, and Defendant 10 are ordered to pay an amount equivalent to the above fines.

Of the facts charged against Defendant 5, the charge of violation of the Mental Health Act due to the omission of the reason for restricting action is acquitted.

The Prosecutor's appeal on the remainder of the acquittal against Defendant 4 and Defendant 5 is dismissed.

1. Summary of grounds for appeal;

A. Defendant 1 and Defendant 2

1) As to the part on Defendant 2’s compulsory confinement of the victim Nonindicted Party 2 at an emergency transport vehicle into a hospital

Defendant 2 thought that it was a way for the victim to receive hospitalized treatment in his own mind with mental problems and mental problems. Defendant 2 determined hospitalization according to the professional judgment based on the knowledge and experience of a psychiatrist. Thus, Defendant 2 did not have the awareness of illegality and did not have the possibility of recognizing illegality.

In particular, since Defendant 2 did not provide Defendant 4 and Defendant 5 with “mise or exaggerated information” regarding the victim’s mental symptoms, and the victim was hospitalized by a decision of hospitalization based on a doctor’s professional and independent judgment, it is a logic that Defendant 2 took the victim’s opinion as an instrument of indirect law.

2) As to the part on Defendant 1’s confinement in collusion with Defendant 2, etc.

In this case, there is no relation with the division of property between Defendant 1 and the victim. Defendant 1 was unaware of the fact that Defendant 2 and Defendant 3 was on January 3, 2013, and hospitalized the victim to the ○○○○ Hospital on the emergency transport vehicle, and was aware of such fact on January 4, 2013. Defendant 2 and Defendant 3 did not participate in the process of re-taking the victim into the emergency transport vehicle again to the △△△ Hospital on January 8, 2013, and then hospitalized the victim to the △△△△△ Hospital. However, it is recognized that Defendant 1 knew of the above acts by Defendant 2, etc., such as Defendant 2, etc., and it was passively silent of the acts by Defendant 2, etc., but thereby, it cannot be said that Defendant 1’s co-principal criminal liability is a crime of conspiracy to commit an act of confinement of the victim.

3) As to Defendant 1 and Defendant 2’s joint residence intrusion

On January 4, 2013, Defendant 1 and Defendant 2’s entry into the victim’s house was aimed at realizing the clothes, etc. of the victim hospitalized in the preceding day and examining the situation of the victim’s mental condition. However, even if it is recognized that the elements of the crime regarding the intrusion upon the victim’s residence were satisfied, there was no perception of illegality.

4) As to Defendant 1’s charge of forging and uttering private documents, and attempted fraud

The reasoning of the judgment of the court below, which was presented by the court below, is not only unfair in itself, but also unreasonable, and it can not be ruled out that the possibility of forgery cannot be ruled out without any evidence against the act of forging private documents which requires strict certification. The appraisal result of the National Science Investigation Agency was used as evidence of conviction against Defendant 1, and it was found that Defendant 1 was guilty of the crime of forging private documents and the crime of uttering thereof, and that it was erroneous in violation of

5) Unreasonable sentencing

Even if all of the facts constituting the instant crime are found guilty, the sentence of the lower court (Defendant 1: 2 years of imprisonment, and Defendant 2: 10 months of imprisonment) is excessively excessive and unreasonable.

B. Defendant 3

1) Legal principles

A) Failure to commit an indirect offense with respect to confinement

In particular, there is no fact that Defendant 3 assisted and aided the head of the hospital by indirect law. It is unreasonable for the lower court to view that Defendant 3’s act of confinement was established regarding the part of hospital hospitalization by the decision of the head of the hospital.

B) Hospitalization is a legitimate act

While both the mental health doctors who determined hospitalization and detained during the period of hospitalization are justifiable acts, it is unreasonable to recognize the crime of confinement against Defendant 3, who was accompanied by Defendant 2 by the person responsible for protection, after hearing the opinion that the victims have a lot of mental problems.

2) misunderstanding of facts

Defendant 3 does not have any relation with Defendant 1’s property division trial. Defendant 3 had the mind to help Defendant 2 and did not actively participate in confinement and confinement. The victim was in a state of need for medical treatment due to mental illness.

3) Unreasonable sentencing

The punishment of the lower court (ten months of imprisonment) shall be too excessive and unreasonable.

C. Defendant 4

Since Non-Indicted 1, the legal guardian of the victim, was studying abroad, there was an inevitable reason that he could not submit the written consent of hospitalization by January 3, 2013, which is the date of hospitalization. Defendant 2, the legal guardian of the victim, stated “the reason why he consented in writing” on the back of the written consent of hospitalization, and received a written reason stating that he consented to the consent of the birth in Canada. The victim was hospitalized on January 3, 2013 and discharged on the 8th day of the same month, which is seven days before the date of hospitalization, and thus, it cannot be deemed unlawful that he did not meet the written consent of Non-Indicted 1.

Nevertheless, the court below found the defendant guilty of violating the Mental Health Act concerning the unclaimed district such as the written consent of hospitalization. The court below erred in misunderstanding of facts or misapprehending of legal principles.

D. Defendant 5

1) As to the violation of the Mental Health Act regarding the unpaid Gu, such as written consent to hospitalization

Defendant 5 requested both written consent of hospitalization and the reasons therefor.

2) As to the violation of the Mental Health Act due to the failure to state the reason for restricting action

Defendant 5, who has the date of enforcement of the limitation on telephone and interview, was prepared in the same way as that of the medical examination and treatment in light of the contents of the medical treatment and the progress of the medical treatment, etc., and it is nothing more than that of the classification of the relevant items, and Defendant 5 stated the reasons for restriction on behavior in the above work.

The lower court acknowledged the facts that Defendant 5 stated “not later than the time when physical and emotional shortest symptoms appear,” and “not later than the time when the changed environment (the changed environment) occurred,” on the date of enforcement of telephone and interview restrictions (Evidence No. 6),” but found Defendant 5 guilty on the ground that there is no clear ground to regard it as a medical record, but it is unreasonable.

E. Defendant 6

Defendant 6 confirmed the existence of a hospitalization room to Defendant 2 and Defendant 3 and provided a theoretical explanation about the procedure of hospitalization. Since the need for hospitalization of a patient is the authority of a mental health doctor who entirely interviewed the patient, there is no substantial part of Defendant 6’s involvement in the hospitalization itself. Nevertheless, the lower court found Defendant 6 guilty by misunderstanding the fact about the status and role of Defendant 6.

F. Defendant 7

(1) misunderstanding of facts

Defendant 7 did not have the right to decide the hospitalization of the patient, and only carried the patient to the doctor for treatment, and there was no intention to detain the patient. In addition, there was no conspiracy with Defendant 1, Defendant 2, Defendant 3, etc.

2) Unreasonable sentencing

The punishment of the lower court (a fine of five million won) shall be too heavy and unreasonable.

(g) A prosecutor;

1) misunderstanding of facts as to the violation of the Punishment of Violences, etc. Act (joint confinement) by Defendant 4 and Defendant 5

Defendant 4 and Defendant 5 obtained the consent of one of the two legal guardians and, notwithstanding the absence of the need to be hospitalized by the victim, detained the victim for one week without any special measure to confirm the necessity of such hospitalization, and thereafter handed over the victim’s personal illness to Defendant 2. It is sufficient to recognize the intention of confinement of the Defendants, who do not do so, and such act cannot be deemed as a legitimate act in the course of business.

2) misunderstanding of facts as to the violation of the Punishment of Violences, etc. Act (joint confinement) by Defendants 6, 7, and 8

Since the compulsory transfer of the above Defendants to the ○○○ Hospital by an emergency transport vehicle to the victim was intended for compulsory hospitalization, the acts before and after hospitalization cannot be separated as of the point of time of hospitalization.

In addition, even if the above Defendants deviate from the public conspiracy, they cannot escape from the liability as long as they continued to be detained by Defendants 1, 2, and 3.

Therefore, it should be found guilty about after the time of hospitalization at ○○○ Hospital.

3) misunderstanding of facts as to the violation of the Punishment of Violences, etc. Act (joint confinement) by Defendant 9 and Defendant 10

Since the compulsory transfer of the above Defendants to the △△ Hospital by the victim to the emergency transport vehicle is for compulsory hospitalization to the hospital, the acts before and after hospitalization cannot be separated as of the time of hospitalization.

In addition, even if the above Defendants deviate from the public conspiracy, they cannot escape from the liability as long as they continued to be detained by Defendants 1, 2, and 3.

Therefore, it should be found guilty of the act after the time of hospitalization at △△ Hospital.

4) misunderstanding of facts as to the violation of part of the Mental Health Act by Defendants 4 and 5

The restriction on the freedom of communication, etc. with respect to a mentally ill person under the Mental Health Act may be limited to cases necessary for medical treatment, and where a request for discharge is made by a mentally ill person or a legal guardian, the relevant patient shall be discharged without delay unless a psychiatrist notifies the risk of danger.

However, the victims at the time were not in need of compulsory hospitalization at the mental hospital, and there was a situation in which it is difficult to find out the necessity of restrictions on communication due to any reason.

Nevertheless, Defendant 4 and Defendant 5 did not release the victim against the victim’s request for release from communication, etc. by restricting the victim’s freedom of communication, etc., so this part of the Mental Health Act should be recognized.

5) Unreasonable sentencing on Defendant 1, Defendant 2, Defendant 3, Defendant 4, Defendant 5, Defendant 6, and Defendant 7

The sentence of the court below against the above defendants (the imprisonment of two years, the imprisonment of two years, the defendant 2, and the defendant 3: 10 months, the imprisonment of ten months, the defendant 4, and the defendant 5: each suspended sentence, the defendant 6, and the defendant 7: the fine of five million won for each of the above defendants) is too unfeasible and unfair.

2. Determination on the assertion by Defendant 1 and Defendant 2

A. Part of the allegation that Defendant 2’s act was a justifiable act for the victim and did not have an awareness of illegality

1) According to Article 22(1) of the Mental Health Act (hereinafter “Act”), the legal guardian of a mentally ill person shall not be hospitalized without a diagnosis by a psychiatrist. Article 24(1) of the same Act provides that the head of a mental medical institution shall be hospitalized only where two legal guardian of a mentally ill person consents and a psychiatrist diagnoses that the hospitalization is necessary. In light of the purport of these provisions and the basic ideology of Article 2(1) and (5) of the Act, all mentally ill persons shall be guaranteed dignity and value as human beings and shall be recommended voluntary hospitalization at all times with respect to a mentally ill person in need of hospitalized treatment, even if the legal guardian consents to hospitalization by a legal guardian as provided in Article 24 of the Act, and diagnosis and diagnosis of the need for hospitalization by a psychiatrist. Accordingly, the head of a mental medical institution shall be determined by the head of a mental health institution based on the diagnosis and diagnosis of the mentally ill person, and the head of a mental health institution shall be permitted to exercise his capacity within the reasonable scope (see Supreme Court Decision 200Do4253, Apr. 2014).

However, according to the evidence duly adopted and examined by the court below, Defendant 2, who is an employee of the ○○ Hospital for Emergency Patients, was at the victim’s residence, and was at the victim’s disadvantage, strokely strokeed the victim’s resistance, and then strokeed the victim’s hand back to the ○○ Hospital for emergency transport, and before strokeing the victim’s hand back to the ○○○ Hospital for emergency transport vehicle, it can be recognized that the victim was hospitalized at the above hospital without the diagnosis and diagnosis by a psychiatrist who face face-to-faced the victim or the hospitalization decision by the head of the ○○○ Hospital for Emergency Patients. Thus, the act of Defendant 2 hospitalized the victim by forcing him to force the victim as above does not constitute an act based on law. The same applies to the case where Defendant 2 hospitalized the victim from the ○○ Hospital for ○○ Hospital to △△ Hospital.

2) Furthermore, "act which does not violate the social rules" under Article 20 of the Criminal Act refers to an act which can be accepted in light of the overall spirit of legal order or the social ethics or social norms surrounding it. Whether certain act is a legitimate act that does not violate the social norms and thus, should be determined individually by considering the following specific circumstances: (i) legitimacy of the motive or purpose of the act; (ii) reasonableness of the means or method of the act; (iii) balance between the protected interests and the infringed interests; (iv) balance between the protected interests and the infringed interests; and (v) supplementary nature that there is no other means or method than the act (see Supreme Court Decisions 86Do1764, Oct. 28, 1986; 98Do2389, Apr. 25, 200).

However, according to the evidence duly adopted and examined by the court below, Defendant 1 and mother, Defendant 2’s father and mother, were married around December 31, 2007. Defendant 2 was studying in Canada from around 2003 to Defendant 1, and the expenses incurred from studying abroad were supported by Defendant 1, and the victim was living in Korea for about five years since May 2008. Defendant 2 was forced to leave the victim to ○○○○ Hospital. Defendant 1 did not have any contact with the victim to check the state of the victim or receive medical treatment with mental hospital before the victim was hospitalized. Defendant 2 had no contact with the victim at the time of the crime of property division, and there was no fact that Defendant 1 and the victim were hospitalized at the time of the crime of property division, except for the above fact that Defendant 2 had been committed against Defendant 1, 200 million won at the time of the crime of property division, and there was no fact that Defendant 1 and the victim were 100 million won at the time of the crime of property division.

In light of these facts in light of the legal principles as seen earlier, Defendant 2, who is the child, seems to have been able to take emergency hospitalization procedures with the consent of the doctor and police officer as prescribed by Article 26 of the Act in a very urgent case, in a case where the victim is allowed to voluntarily undergo mental treatment or, in consultation with a psychiatrist, in a case where the victim is not forced to undergo such treatment before the mother is forced to leave the mental hospital. Thus, it is difficult to evaluate that Defendant 2’s act of forcing the victim to take the victim into the mental hospital and hospitalized the victim into the mental hospital as a justifiable act that does not contravene social norms, and thus, the illegality of such act is excluded.

3) Therefore, Defendant 2’s act cannot be deemed as a justifiable act for the victim. Even if Defendant 2 did not have the awareness of illegality of his act, it cannot be deemed that there was a justifiable reason for the perception of mistake. Thus, this part of the allegation by Defendant 2 is without merit.

B. Part of the assertion that the illegality is dismissed as hospitalization was determined based on the professional judgment based on the knowledge and experience of a psychiatrist

1) Whether a diagnosis conducted by Defendant 4 and Defendant 5 under the condition that the victim was illegally arrested and detained constitutes a diagnosis by a psychiatrist under Article 24 of the Act

A) The law stipulates differently regarding the requirements and procedures for hospitalization by type of hospitalization, the period of hospitalization, and the application for discharge, by dividing the types of hospitalization into four kinds, including voluntary hospitalization (Article 23), hospitalization by the legal guardian (Article 24), hospitalization by the head of a Si/Gun/Gu (Article 25), and emergency hospitalization (Article 26).

In other words, hospitalization of a mentally ill person shall be conducted by a person who is responsible for protection, and in case of hospitalization by a person responsible for protection, only when the director of the mental medical institution deems it necessary with the consent of two persons responsible for protection of the mentally ill person and the psychiatrist considers it necessary to be hospitalized. When the mentally ill person needs hospitalization, the psychiatrist shall attach a written recommendation of hospitalization stating his opinion that hospitalization falls under ① a case where a patient is suffering from a mental illness of a degree or of a nature to receive hospitalized treatment in a mental medical institution, or ② a case where hospitalization is necessary for the patient’s own health or safety or other safety. The hospitalization by the head of the Si/Gun/Gu may request the head of the Si/Gun/Gu, etc. to examine and protect the person suspected of harming himself/herself or other persons due to mental illness. When it is deemed necessary to examine the symptoms of the person suspected of being a mentally ill person, the head of the Si, etc. may request hospitalization of the person concerned to the mental medical institution or the general hospital within the scope of two weeks from the date of hospitalization by the State or local government.

In light of the content, legislative purport, etc. of the provisions of this Act, ① Even if a mentally ill person is a mentally ill person, in principle, he/she shall not be forced to undergo a diagnosis and diagnosis against his/her will, and shall not be forced by a legal guardian. ② In cases where a mentally ill person is suspected of having a risk to harm himself/herself or others or is highly at such risk, he/she may compulsorily diagnose the patient through hospitalization or emergency hospitalization procedures by the market, etc.; ③ it is difficult to view that the illegal arrest and confinement of the patient is lawfully converted because there is diagnosis under illegal arrest and confinement; ④ Whether hospitalization is necessary or not by a psychiatrist; ④ in cases where a patient is suffering from mental illness in a mental medical institution or of a nature, it is difficult for a mental health sanatorium to determine that hospitalization is necessary for the patient’s own health or safety; ② it is necessary to have an interview with the legal guardian as well as where it appears that it is necessary to have a considerable number of examination and confinement time for the patient to be conducted by a mental medical institution without a mental health doctor’s consent.

However, according to the evidence duly adopted and examined by the court below, Defendant 2, the director of the ○○ Hospital and the psychiatrist of the ○○ Hospital, who is an employee of the ○○ Hospital for Emergency Patients, can be recognized as having the victim diagnosed “it is necessary to be hospitalized in treatment due to an accident or aggressive action” by being aware of such fact. Thus, the diagnosis by Defendant 4 conducted while the victim illegally arrested and detained does not constitute a diagnosis under Article 24(1) and (2) of the Act.

Defendant 2’s diagnosis, the director of the △△△△ Hospital and the psychiatrist, which was conducted after Defendant 2 forced the victim from the ○○○ Hospital to the △△△△ Hospital, was also the same.

B) In addition, it is difficult to view that the diagnosis by Defendants 4 and 5 constitutes the diagnosis by a psychiatrist under Article 24 of the Act, as seen below, even in the content thereof.

(1) Article 24(2) of the Act provides that “When a mentally ill person is diagnosed as requiring hospitalization, a medical specialist of mental health shall attach a written recommendation for hospitalization stating that the mentally ill person concerned falls under any of the following cases to the written consent of hospitalization under paragraph (1).” Each of the above subparagraphs provides, “1. In a case where a patient is suffering from a mental disease of a degree or nature sufficient to receive treatment at a mental medical institution, 2. In a case where hospitalization is necessary for the patient’s health or safety, or for the other person’s safety.” Here, the diagnosis of whether hospitalization is necessary shall be conducted by professional knowledge and experience of a psychiatrist. However, in light of the basic ideology, etc. of Article 2(1) and (5) of the Act, with respect to a mentally ill person who needs hospitalization, voluntary hospitalization shall be recommended on the basis of human dignity and value, all of the mentally ill person must be conducted at all times after a necessary inspection, evaluation, and evaluation after considerable time, and shall not depend only on the prosecutor’s statement and evaluation of reasonableness.

(2) Regarding Defendant 4’s diagnosis

① On November 16, 2013, the victim stated to the prosecution for the following purposes:

○○○ Hospital’s emotionally entered the elevator with a few male nurses, she was unsatisfying, and Defendant 4 was satisfying out of locks, such as so on. 30 minutes after the locking. CR satisfy was satched with concrete and single satisfy, and there was a plastic change that can see satisfy. It was difficult to see that Defendant 4 had been hospitalized for 0 weeks and 4 weeks, and that she could not have been hospitalized for 0 weeks, and that she would have been able to find out that she would not have any other reasons for the first time since she was hospitalized for 4 weeks. It was difficult to say that Defendant 1 and Defendant 2 did not have any other reasons for the first time after she was hospitalized for 4 weeks.

② On December 12, 2013, Defendant 4 stated to the prosecution the following purport:

The victim had no time to leave the victim at the time when he / she had been able to look back on duty because he/she had been living in a riotous state at the time. The victim had been forced to appear in five years since her division of property because she had been 1.5 billion won. The conversation was not known that the victim had attempted to talk with her past history or other symptoms. After that, the victim was hospitalized in the clinic and c/ord, the victim did not want to have his/her child at least 2 years before her first c/ her first c/ her c/ her c/ her c/ her c/ her c/ her c/ her c/ her c/ her c/ her c/ her c/ her c/ her c/ her c/ her c/ her c/ her c/ her c/ her c/ her c/ her c/ her c/ her her.

위와 같은 피해자와 피고인 4의 진술내용 등을 비롯하여 원심이 적법하게 채택하여 조사한 증거들을 종합하면, ① 피해자는 당시 전 남편인 피고인 1과 사이에 수십억 원의 재산분할심판 사건이 진행 중에 있었는데, 5년 동안 연락도 전혀 없던 아들인 피고인 2가 갑자기 찾아와 문을 열어 주었더니, 정체를 알 수 없는 건장한 남자들이 자신을 강제로 데려가려고 하여 저항하였으나 자신의 목을 졸라 꼼짝 못하게 된 후 손을 뒤로 하여 묶인 채 강제로 응급이송차량에 태워져 ○○○○병원에 가게 된 사실, ② 피해자는 병원에 도착하여 몹시 흥분된 상태로 고성을 질렀고 의사인 피고인 4의 진료실에서 면담을 하면서 ‘재산분할 150억 때문에 아들이 5년 만에 나타나서 나를 강제로 데리고 왔다’는 말만 계속한 사실, ③ 그 결과 피고인 4가 피해자의 과거력이나 다른 증상을 알아보려고 대화를 시도했으나 대화가 안 되었고 그 면담 시간이 길지는 않았던 사실, ④ 한편 피고인 4는 피해자와의 면담 전이나 후에 피고인 2로부터 ‘피해자가 2002년에 전 남편 회사 공금 8억 원을 횡령하고 이유 없이 감정기복 심하며 자녀들에게 공격적인 행동 보이고 혼잣말을 하거나 배회하며 자녀들을 폭행하고 자해하겠다며 위협하는 등의 행동을 했다’는 말을 들었고, 피고인 2가 피해자와 5년 반 동안 연락 없이 지내온 사실도 알게 된 사실, ⑤ 피고인 4가 피고인 2에게 피해자의 상태가 요즘은 어떠냐고 하니까 피고인 2는 수위아저씨가 엄마가 이상하다는 식의 말을 하는 것을 들었고 집안이 난리였다고 말한 사실, ⑥ 그 후 피고인 4는 피해자가 “피해사고 및 공격적 행동으로 입원치료가 필요함”이라고 진단한 후 입원결정을 한 후 피해자를 CR룸으로 올려 보낸 사실을 인정할 수 있다.

However, in cases where a child, who had no contact with her husband before the divorce and had no contact for five years, intends to have forced him/her hospitalized at a mental hospital, it seems reasonable to have had the intention to satisfy by very rough entertainment and have continued to refer only the same fact to the doctor. Therefore, Defendant 4, as a psychiatrist, should have confirmed whether the case for division of property claimed by the victim is in progress through an interview with Defendant 2, who is an son, and confirmed whether the case for division of property was in progress for five years, and should have checked the specific reasons for Defendant 2, who had left without contact to have the victim forced her own hospitalization, direct and specific risks to the life, body, etc. of the victim or other person, and should have diagnosed whether compulsory hospitalization is necessary after conducting a necessary prosecutor, evaluation, etc. over a considerable time.

Nevertheless, even though Defendant 4 had a lot of statements made by Defendant 2, who tried to be hospitalized in the Party A for a period of five years without any contact, Defendant 4 diagnosed Defendant 4 as “the victim needs to undergo hospital treatment due to an accident and aggressive behavior” without any examination and evaluation, depending only on some simple statements shown by Defendant 1, the former husband, in the process of the conflict between husband and wife, etc. with Defendant 1, who had been the former husband for a long time. In other words, Defendant 4 diagnosed Defendant 4 as “the victim needs hospital treatment due to an accident and aggressive behavior.” Such an extremely simple and formal diagnosis is considerably deviating from and abusing the doctor’s discretion, and thus, it should be deemed that the victim’s forced hospitalization is not justified.

Therefore, it is difficult to view that Defendant 4’s diagnosis also constitutes a diagnosis by a psychiatrist under Article 24 of the Act.

(3) Regarding Defendant 5’s diagnosis

① On November 16, 2013, the victim stated to the prosecution for the following purposes:

“△△△△병원 지하에 차를 세우고 내려서 제가 너무 울어서 생수로 얼굴을 닦고 있으니까 EMS 직원 중 안경 낀 사람이 저한테 ‘이렇게 멀쩡한 사람을 병원에 넣는다’고 하면서 의사를 만나더라도 절대 울지 말고 침착해라고 했다. 지하에서 4층으로 올라가서 면접실 같은 곳에서 EMS 직원이 옆에 앉아 있다가 간호사가 와서 저를 무서운 CR룸으로 데리고 갔다. CR룸은 빠삐용 같은 감옥이다. ○○○○병원과 비교할 때 크기가 더 작고 1인용 침대가 있는데 침대 비닐이 다 떨어져 있고 아주 냄새나는 이불이 하나 있고 벽지는 누렇게 변해서 다 떨어져 있었고 냄새나는 변기가 있었다. 그리고 CR룸으로 들어가기 전 옆방에 남자 두 명이 저를 보고 웃는데 정말 무서웠다. CR룸으로 들어가서 있으니 간호사가 옷을 갈아입으라고 병원복을 던져 줘서 옷을 갈아입고 있으니까 피고인 5가 들어왔다. 피고인 5가 들어오자마자 피고인 5에게 ‘나는 미치지 않았다’고 했다. 재산분할 사건번호를 말했고 ‘재산분할 포기각서를 써 주겠다. 나 나가겠다’고 했다. 피고인 5는 ‘왜 재산을 포기하냐? 여기 있으면서 재산을 받으면 되지’라고 했다. 나는 피고인 5에게 ‘나는 아무 짓도 안 할 테니 여기서 내보내 달라’고 했다. 그랬더니 피고인 5가 하는 말이 ‘4층은 좀 그러니 좋은 7층으로 보내드려’라고 했다. CR룸에서 20분 정도 있었던 것 같다. 피고인 5는 ‘무조건 일주일 이상 있어야 한다. 지금은 판단할 수가 없으니 인지·뇌파 검사 등을 해 보자. 그리고 이상이 없으면 퇴원시키겠다’고 했다. 그래서 제가 얼마든지 하자고 했다. 그 다음날 검사지를 갖다 줘서 거의 이틀 동안 계속 검사를 했다. 정말 열심히 했다. 피고인 5와의 면담과정에서 ‘아들이 입원시켰지만 캐나다에 있으면서 6년 동안 얼굴 한 번 못 봤다’고 했고 재산분할 얘기를 매번 반복해서 했던 것 같다. 진단 없이 입원부터 시키고 격리시킨 것이다. 피고인 5와의 첫 대면하여 진찰한 결과 피고인 5가 앞으로 인지·뇌파·심리검사를 할 것이라고 했다. 검사하기 위하여 온 것이라고 했던 것 같다.”

② On December 18, 2013, Defendant 5 stated to the prosecution the following purport:

Around 20:30, when a patient was working on duty, she only reported emscam to the 5th floor cR room, and she was the guardian thereafter. The victim was forced to be hospitalized by her guardian. There was no written diagnosis for the mental illness of the victim or an interview with the victim in advance. The victim was forced to be hospitalized by her ○○ Hospital and transferred to △△△△ Hospital. Such fact was difficult to see that the patient was in an emergency at the time of the interview. In general, it was difficult to see that the patient was in an emergency at the time of the interview. It was difficult to see that there was no possibility that she would have been forced to have been hospitalized by her family members at the time of their interview before her arrival. It was difficult to see that there was a possibility that she would have been forced to have an interview with her family members.

③ On December 20, 2013, Nonindicted 3, who is the senior secretary and staff of the △△△△ Hospital, made a statement at the prosecution to the following purport:

The term “protector’s Guide-to-the-day test was called as a guardian, and the patient was able to be hospitalized. After the patient’s arrival, the guardian was late. This is because the guardian had a contact with the hospital at the time of the contact with the hospital, and the guardian had no contact with the hospital more than 10 p.m., and the contact had not yet been made more than 10 p.m., the guardian was correctly predicted. The patient was hospitalized before the interview with the guardian. The same is that the patient was hospitalized. The same is that the day of the interview with the guardian. The day of the interview with the Defendant 9 was first sent to the local area, such as the guardian. As the case, Defendant 9 was friendly.”

Comprehensively taking account of the evidence duly adopted and examined by the lower court, including the aforementioned victims, Defendant 5, and Nonindicted 3’s statement, the victim was released from ○○○ Hospital, but he again under the implied consent of Defendant 2, etc., led to the △△△ Hospital by the employees of the emergency transport service provider who received instructions from the ○○ Hospital. ② At the time, the victim did not have a big risk to harm himself or others, but did not consent of the police officer, and was sent to the emergency transport vehicle at night without an interview. ③ The victim was forced to be hospitalized without an interview. ③ The victim’s family at the time of interview with Defendant 5, who was a doctor, was hospitalized. The victim’s family at the CR room stated that it was unreasonable for the victim to have been hospitalized. However, the victim’s reliance on the possibility that the victim could interfere with the patient’s suicide, and the victim’s reliance on the victim’s consent to hospitalization, and the victim’s reliance on the victim’s reliance on hospitalization.

According to the above facts, although Defendant 5 did not meet the requirements for emergency hospitalization under Article 26 of the Act, he was hospitalized immediately without meeting the victim, and the family claimed by the victim was hospitalized in the hospital by force. The content of “nick.......... there has been detention in the hospital,” the victim was diagnosed as “in need of hospitalized treatment due to physical disorder, mental disorder, etc.” without any inspection for the diagnosis by dependent only on Defendant 2’s statement that is suspected of rationality, without paying any attention to the contents of “n.e., the victim’s diagnosis”. Thus, such diagnosis should be deemed as significantly deviating from and abusing the discretion of the doctor, and thus, it cannot be justified for the victim’s compulsory hospitalization.

Therefore, it is difficult to view that Defendant 5’s diagnosis constitutes a diagnosis by a psychiatrist under Article 24 of the Act from the content of the diagnosis.

2) Whether there was the consent of two legal guardians

As seen earlier, hospitalization by a legal guardian under Article 24(1) of the Act refers to not only a professional judgment of the necessity of hospitalization by a psychiatrist, but also a consent of two legal guardian (in cases where there are only one legal guardian, one consent shall be required) and consent shall be deemed to mean a prior consent. Therefore, in cases where there is no prior consent of two legal guardian, compulsory hospitalization shall not be dismissed pursuant to Article 24 of the Act (in cases where there is a procedural defect, there is a separate penal provision for procedural defect, even if there is a judgment on the necessity of hospitalization by a psychiatrist, the court determined that the illegality is dismissed by a justifiable act. However, the provisions of Articles 57 subparag. 2 and 24(1) of the Act are expected to be punished on the premise that there is a prior consent of two legal guardians. Thus, even if there is no prior consent of the legal guardian at the time of hospitalization, hospitalization by a mental health doctor is unlawful under Article 24 of the Act.

However, as seen later, as follows: ① Defendant 2 did not appear to have made a statement with Nonindicted Party 1, the birth of the victim before the victim was forced to be hospitalized in the ○○○ Hospital; Defendant 2 did not sign the written consent of hospitalization submitted by the said Defendant; Nonindicted Party 1 did not state the fact that there was Nonindicted Party 1’s declaration of consent to forced hospitalization of the victim; ② the said Defendant is only the signature of the said Defendant at the time of the admission into the △△△△△ Hospital; Nonindicted Party 1 did not sign the written consent at the time of the hospitalization; and Nonindicted Party 1’s declaration of consent to forced hospitalization of the victim was not written. As such, Defendant 2 failed to meet the requirements for the consent of two persons responsible for protection as stipulated in Article 24(1) of the Act, even if the consent of the two persons responsible for protection as stipulated in Article 24(1) of the Act was confirmed ex post (i.e., the consent of Nonindicted Party 1 on forced hospitalization of the victim, but it is obvious that such consent was not duly corrected and retroactively).

3) Sub-decisions

Therefore, the diagnosis that Defendant 4 and Defendant 5, who are a psychiatrist, are required to be hospitalized, was conducted in a state where the victim was illegally arrested or detained, and the contents of the diagnosis are based only on Defendant 2’s statement suspected of rationality and conducted without any examination and evaluation. Thus, it cannot be deemed that the diagnosis by a psychiatrist under Article 24 of the Act that justify compulsory hospitalization by the victim does not constitute a diagnosis by a psychiatrist under Article 24(1) of the Act, and it cannot be deemed that there was the consent of two legal guardians under Article 24(1) of the Act. Thus, Defendant 4 and Defendant 5’s act of forced hospitalization against the victim’s will is a justifiable act under Article 24 of the Act or by work, and its illegality cannot be deemed to

Ultimately, Defendant 4 and Defendant 5’s assertion on this part, which is premised on the premise that the act of Defendant 4 and Defendant 5 forced the victim to be hospitalized in a legitimate act, constitutes a justifiable act,

C. As to the assertion that Defendant 1 did not forced hospitalization of the victim in collusion with Defendant 2, etc.

In light of the evidence duly admitted and examined by the court below, the court below is just in rejecting the argument that Defendant 1 did not forced admission of the victim in collusion with Defendant 2, etc., and there is no error of law that affected the conclusion of the judgment by misunderstanding the facts. This part of the defendant 1's assertion is without merit.

D. As to the assertion on the joint residence intrusion of Defendant 1 and Defendant 2

According to the evidence duly admitted and examined by the court below, the facts that Defendant 1 and Defendant 2 committed an act of violation of the Punishment of Violences, etc. Act (joint residence) jointly with Defendant 3 can be fully acknowledged.

Therefore, the court below is just in finding Defendant 1 guilty of this part of the facts charged, and there is no error of law by misunderstanding facts or by misunderstanding the legal principles as to the recognition of illegality, which affected the conclusion of the judgment. This part of the allegation by

E. As to Defendant 1’s assertion on the charge of forging and utteringing private documents, and attempted fraud

In light of the evidence duly adopted and examined by the court below, the court below determined that Defendant 1’s forgery and uttering of private documents, and charges of attempted fraud are recognized, and further rejected Defendant 1’s assertion that the divorce agreement at issue of this case was duly prepared not by Defendant 1 but by forgery, based on the reasons indicated in its reasoning, and there is no error of law that affected the conclusion of the judgment by misunderstanding facts in violation of logical and empirical rules. This part of Defendant 1’s assertion is without merit.

3. Determination as to the remaining Defendants’ assertion

A. As to Defendant 3’s assertion

1) Part concerning misapprehension of legal principles

As seen in Paragraph 2-b above, Defendant 4 and Defendant 5’s forced hospitalization of the victim does not constitute a justifiable act.

Therefore, this part of the prior Defendant 3’s assertion on a different premise is without merit.

2) Part on the assertion of mistake

According to the evidence duly adopted and examined by the court below, Defendant 3, in collusion with Defendant 1, Defendant 2, etc., forced the victim to put the victim into an emergency transport vehicle and detained him/her at the ○○○○ Hospital, and subsequently forced the victim to put him/her into an emergency transport vehicle and detained him/her at the △△△△ Hospital.

Therefore, the court below's finding Defendant 3 guilty of violation of the Punishment of Violences, etc. Act (joint confinement) is just, and there is no error of law that affected the conclusion of the judgment by misunderstanding the facts. This part of the defendant 3's assertion is without merit.

B. As to Defendant 4’s assertion

Article 24(1) of the Act provides that the head of a mental medical institution may hospitalization of a mentally ill person only where the consent of two legal guardians of mentally ill persons (where there are only one legal guardian, the consent of one legal guardian), and where a psychiatrist deems it necessary to hospitalization, he/she shall obtain the consent of hospitalization prescribed by Ordinance of the Ministry of Health and Welfare from the legal guardian, and the consent of hospitalization shall be confirmed by the legal guardian. In addition, Article 14(2) of the Enforcement Rule of the Mental Health Act provides that the consent of the legal guardian under Article 24(1) of the Act shall be signed or sealed by the legal guardian on the written consent of hospitalization under paragraph (1) of the same Article: Provided, That where the legal guardian requires the consent of two legal guardians, one of the legal guardians has passed, but it is inevitable for him/her to submit a written consent of hospitalization signed or sealed by the legal guardian due to illness, military service, convict, overseas residence, etc., the head of a mental medical institution may submit a written consent of hospitalization and documents within seven days from the date the legal guardian’s consent of hospitalization.

In light of the above provisions, Defendant 4, the director of a mental medical institution, should receive a written consent to hospitalization and a document verifying that he/she is the legal guardian, when hospitalized the victim. Even if one of the legal guardian, Non-Indicted 1, who was the legal guardian, expressed his/her intent of consent, but was studying abroad, and there was any inevitable reason not to submit a written consent to hospitalization signed or sealed by the time of hospitalization, he/she should receive the written consent (including the statement of the fact that the consent was declared) from Defendant 2, the legal guardian, as well.

However, according to the evidence duly admitted and adopted by the court below, Defendant 2 did not have any fact that the mother, who was the mother, forced the victim to be hospitalized in the ○○○ Hospital, and Defendant 2 signed the written consent of hospitalization submitted by Defendant 2 to the ○○○ Hospital on January 3, 2013, and there was no signature by Nonindicted 1, and Defendant 2 did not sign the written consent. Defendant 2 only signed the written consent of the victim on the back of the aforementioned written consent of hospitalization, and Defendant 2 signed the written consent of the victim’s forced hospitalization, on the ground that “other than the legal guardian, other than the legal guardian, was unable to visit the hospital due to unavoidable reasons such as age,” and Defendant 2 signed the written consent of the victim, and the fact that Nonindicted 1 expressed his/her consent to forced hospitalization is not stated.

According to these factual relations, the court below was just to find the defendant guilty of violating the Mental Health Act concerning the unpaid Gu, such as the written consent to hospitalization, and there is no error of law by misunderstanding the facts or by misapprehending the legal principles, which affected the conclusion of the judgment. The above assertion by

C. As to Defendant 5’s assertion

1) The part of violation of the Mental Health Act due to the failure to comply with the request for hospitalization.

B. As seen in the foregoing B, Defendant 5, the director of a mental medical institution, must receive a written consent to hospitalization and a document verifying that the legal guardian is the legal guardian, when hospitalized the victim. Even if one of the legal guardian, Non-Indicted 1, who was the legal guardian, expressed his/her consent, but was studying abroad, and there was any inevitable reason not to submit a written consent to hospitalization signed or sealed by the time of hospitalization, he/she should receive the written consent (including the statement of the fact that the consent had been declared) from Defendant 2, the legal guardian, as well as other legal guardian.

However, according to the evidence duly admitted and adopted by the lower court, Defendant 2’s written consent of hospitalization submitted to the △△△△ Hospital around January 8, 2013 includes only Defendant 2’s signature and Nonindicted 1’s signature, and the reason submitted by Defendant 2 at the time is stated as follows: “At the time, Ningent’s father and divorced status, and children among their children are residing in Canada, are unable to play a guardian’s role because they cannot be seen as being living in Canada, and that Nonindicted 1’s consent was inevitably applied to forced hospitalization of the victim.” However, the fact that Nonindicted 2 expressed his/her consent against forced hospitalization is not stated can be acknowledged.

According to these factual relations, the court below was just to find the defendant guilty of violating the Mental Health Act concerning the unpaid Gu, such as the written consent to hospitalization, and there is no error of law by misunderstanding the facts or by misunderstanding the legal principles, which affected the conclusion of the judgment. The defendant 5

2) The part of violation of the Mental Health Act due to the failure to state the reason for restricting action

The summary of this part of the facts charged is that, where the director of a mental medical institution, etc. restricts the freedom of conduct of a mentally ill person, it shall be conducted within the minimum scope and the reasons therefor shall be stated in the medical records. From January 8, 2013 to January 11, 2013, Defendant 5 refused a request of a victim who wishes to have telephone conversations and interview with Nonindicted 8, a matrimonial engagement, etc. from the above hospital, and did not state the reasons therefor in the medical records.

The term “medical record” under Article 22(1) of the former Medical Service Act (amended by Act No. 11748, Apr. 5, 2013) means that, regardless of its name, a doctor, dentist, or oriental medical doctor in charge of diagnosis and treatment of a patient has recorded and signed in detail the matters and opinions regarding the medical practice of the patient. It is distinguishable from a midwifery record prepared by a person other than a doctor, dentist, or oriental medical doctor, nursing record, physical treatment register, radiation photographing record book, etc. (see, e.g., Supreme Court Decision 2006Do413, Sept. 8, 2006). According to the evidence No. 6, Defendant 5 stated the patient’s name column of document stating “the date on which telephone and face-to-face restriction was implemented,” stating the victim’s name in the column of document stating “the date on which he/she puts his/her signature on the victim’s name and affix his/her name and affix his/her signature to the same three or more weeks.”

According to the above facts, since the upper part of the above document was recorded and signed by Defendant 5, who is a doctor, on the matters and opinions concerning the medical practice, it constitutes a medical record. The content is interpreted to mean that the patient's symptoms are shown "physical and emotional short evidence" until the patient reaches the symptoms, and that the limitation of telephone and interview shall be limited until the patient's disease occurred without recognizing the environment for the change, and until the patient's disease occurred. Thus, Defendant 5 shall be deemed to be written in the medical record while restricting the victim's freedom of action, and there is no other evidence to support that Defendant 5 restricted the victim's freedom of action by preparing the above document after the fact, and there is no other evidence to support that the reason was not stated in the medical record.

Therefore, although the facts of this part of the construction work must be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act because it is the case where there is no proof of criminal facts, the court below found the defendant guilty of this part of the facts charged. In so doing, the court below erred by misapprehending the facts or misapprehending the legal principles, thereby affecting the conclusion

D. As to Defendant 6’s assertion

The court below duly admitted and examined the evidence and the facts found by the above evidence, that is, Defendant 6 had a close contact with Defendant 7 and had a thorough knowledge of the absence of diagnosis by a psychiatrist on the victim, and forced the victim to leave the hospital to the emergency transport vehicle.

Therefore, it is just that the court below found Defendant 6 guilty of violating the Punishment of Violences, etc. Act (joint confinement) and there is no error of law by misunderstanding the facts about Defendant 6's status and role, which affected the conclusion of the judgment. The above assertion by Defendant 6 is without merit.

E. As to Defendant 7’s assertion of mistake of fact

In other words, Defendant 7, upon introduction by Nonindicted 5, became aware of Defendant 2 and Defendant 3, and closely contact Defendant 6, the office chief of the ○○○ Hospital, and it is sufficiently recognized that, while being aware of the absence of diagnosis by a psychiatrist, Defendant 7 forced the victim to leave the hospital by an emergency transport vehicle, even though it was well aware of the absence of diagnosis by a psychiatrist.

Therefore, it is just that the court below found Defendant 7 guilty of violating the Punishment of Violences, etc. Act (joint confinement), and there is no error of law that affected the conclusion of the judgment by misunderstanding the facts. The above assertion by Defendant 7 is without merit.

4. Judgment on the prosecutor's assertion

A. The part concerning the misconception of facts as to the violation of the Punishment of Violences, etc. Act (joint confinement) by Defendant 4 and Defendant 5

The act of forced hospitalization of a person against his will by the director of the medical institution for mental illness constitutes a constituent element of the crime of confinement. However, if such an act constitutes a legitimate act under the duties or law, the illegality of the act shall be avoided.

However, as seen in Article 24 (b) of the Act, the diagnosis that “involuntary hospitalization” by Defendant 4 and Defendant 5, a psychiatrist, is required is difficult to be deemed as the diagnosis by a psychiatrist as stipulated in Article 24 of the Act that justify compulsory hospitalization of a victim, since the victim was illegally arrested and detained, the above Defendants were aware of such fact, and the content of the diagnosis depends only on Defendant 2’s statement suspected of rationality, and it was conducted without any examination and evaluation.

Therefore, the illegality of Defendant 4 and Defendant 5’s forced hospitalization against the victim’s will cannot be avoided as an act under Article 24 of the Act or a legitimate act due to duties.

Nevertheless, the court below found Defendant 4 and Defendant 5 not guilty on the ground that the act of Defendant 4 and Defendant 5’s hospitalization of the victim by considering the need for face-to-face medical examination of the victim and hearing of statements with Defendant 2 was unfair beyond the professional and discretionary judgment as a psychiatrist. Thus, it is difficult to view that the act of Defendant 4 and Defendant 5’s hospitalization was unfair beyond the professional and discretionary judgment as a psychiatrist. This is a legitimate act by work or law, and thus, the illegality of this part of the facts charged against the violation of the Punishment of Violences, etc. Act (joint confinement) is excluded. Thus, the court below erred by misapprehending the legal principles or by misapprehending the legal principles, thereby affecting

B. The part concerning the misapprehension of facts as to the violation of the Punishment of Violences, etc. Act (joint confinement) by Defendant 6, Defendant 7, and Defendant 8

The court below duly adopted and examined the following circumstances, namely, Defendant 2, and Defendant 3, etc.: (a) under the diagnosis that the victim needs to be hospitalized by a psychiatrist; or (b) the victim, who is an employee of the medical institution for mental illness, forced the victim to be hospitalized by the ○○○ Hospital without the decision of hospitalization by the head of the medical institution for mental illness; (c) Defendant 6, as the head of the above hospital; (d) Defendant 7, as the head of the above emergency transport business entity’s branch office; (e) informed the victim of close contact with Defendant 2 and Defendant 3, and forced the victim to contact with the hospital; and (d) the victim did not have any risk to harm himself or others; (e) at the time, the victim was not subject to emergency hospitalization as stipulated in Article 26 of the Mental Health Act; (e) even if the victim was forced to be hospitalized by the hospital for mental illness, the victim could not be deemed to have been forced to have been hospitalized by the hospital for mental illness, and (e) the victim could not be deemed to have been aware of the victim’s mental disease.

Nevertheless, the lower court rendered a judgment of innocence as to the charges of the part of the charge from the time of hospitalization to the time of discharge, on the ground that there is no proof of a crime. In so doing, the lower court erred by misapprehending the facts or by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment. The Prosecutor’

C. The part concerning the misconception of facts as to the violation of the Punishment of Violences, etc. Act (joint confinement) by Defendant 9 and Defendant 10

The court below duly adopted and examined the evidence and the evidence as follows, namely, Defendant 2, and Defendant 3, etc.: (a) had the victim undergo diagnosis of the need to be hospitalized by a psychiatrist; or (b) had the victim forced the victim to a △△△ Hospital from ○○ Hospital to a △△△△ Hospital without the decision of hospitalization by the head of the mental medical institution; (c) at the time, the victim was not a person at risk of harm to himself/herself or others; and (d) there was no police officer’s consent, so there was no person subject to emergency hospitalization provided for in Article 26 of the Mental Health Act; (d) although the victim was forced to go to the △△△△ Hospital, the diagnosis and the decision of hospitalization were conducted after the victim was illegally arrested and detained, the diagnosis cannot be deemed to be the diagnosis by a psychiatrist provided for in Article 24 of the Act; and (d) Defendant 9 and Defendant 10, an employee of the emergency transport company, were forced by the legal guardian of the mental patient; and thus, (e) the victim could have known that the victim was forced to be within △△△ Hospital.

Nevertheless, the court below rendered a judgment of innocence as to the facts charged in the part of the charge from hospitalization to discharge from △△△ Hospital on the ground that there is no proof of crime. In so doing, the court below erred by misapprehending the facts or misapprehending the legal principles, thereby adversely affecting the conclusion of the judgment. The prosecutor’

D. Part of the misapprehension of facts as to Defendant 4 and Defendant 5’s violation of the Mental Health Act

1) Regarding the violation of the Mental Health Act due to the restriction on freedom of communication by Defendant 4

The summary of this part of the facts charged is that the director of the mental medical institution, etc. may restrict the freedom of communication, the freedom of interview, and other freedom of action with respect to mentally ill persons only when necessary for medical treatment. However, Defendant 4 rejected a request from the National Human Rights Commission of ○○ Hospital to send correspondence to the National Human Rights Commission of ○○○ from January 3, 2013 to January 8, 2013, and limited the victim’s freedom of communication, etc. by refusing communication without justifiable grounds, even though Nonindicted 8, who is a matrimonial partner of the victim, requested contact with the victim on January 5, 2013 and January 7, 2013, who requested contact with the victim.

However, if a person is detained, the crime of confinement is established, and if the crime of confinement is established, the act of restricting the freedom of behavior of the person under confinement naturally accompanying the act as a result of the act of confinement shall be deemed to be an act which is an unbrisoned incidental to the crime of confinement, and it shall not constitute a separate crime.

Although the court below decided not guilty on the ground that the facts charged constitute a crime or a case where there is no proof of a crime, it is just in its conclusion and there is no error of law by misunderstanding facts or by misunderstanding legal principles which affected the conclusion of the judgment.

2) As to the violation of the Mental Health Act due to Defendant 4’s refusal to discharge

The summary of this part of the facts charged is that the director of the medical institution for mental illness, etc. shall discharge the relevant patient without delay except where a mental health specialist has been notified of the danger of a mental health specialist in the event of a request for discharge from a patient or a legal guardian. However, Defendant 4 did not discharge the victim even though the victim continuously requested discharge during the hospitalization period from January 3, 2013 to January 8, 2013.

However, if a person is detained, the crime of confinement is established, and if the crime of confinement is established, the act of not releasing the person by refusing a request for release (request for release) which is naturally accompanied by the act of confinement should be deemed as a result of the act of confinement, and it does not constitute a separate crime.

Although the court below decided not guilty on the ground that the facts charged constitute a crime or a case where there is no proof of a crime, it is just in its conclusion and there is no error of law by misunderstanding facts or by misunderstanding legal principles which affected the conclusion of the judgment.

3) Regarding the violation of the Mental Health Act due to the restriction on freedom of communication by Defendant 5

The summary of this part of the facts charged is that the director of the medical institution for mental illness, etc. may restrict the freedom of communication, the freedom of interviews, and other freedom of actions with respect to mentally ill persons only when necessary for medical treatment. However, from January 8, 2013 to January 11, 2013, Defendant 5 refused a request from the △△△△△ Hospital for a victim who wishes to have a telephone call and interview with Nonindicted 8, a person who has a matrimonial relationship with the victim, who is a party to a matrimonial relationship with Nonindicted 8, without any justifiable reason, and limited

However, if a person is detained, the crime of confinement is established, and if the crime of confinement is established, the act of restricting the freedom of behavior of the person under confinement naturally accompanying the act as a result of the act of confinement shall be deemed to be an act which is an act which is an unbrisoned incidental to the crime of confinement, and it shall not constitute a separate crime.

Although the court below decided not guilty on the ground that the facts charged constitute a crime or a case where there is no proof of a crime, it is just in its conclusion and there is no error of law by misunderstanding facts or by misunderstanding legal principles which affected the conclusion of the judgment.

4) Regarding the violation of the Mental Health Act due to Defendant 5’s refusal to discharge

The summary of this part of the facts charged is that the director of the medical institution for mental illness, etc. should discharge the patient without delay except where a mental health specialist has been notified of the danger of a mental health specialist in the event of a request for discharge from the patient or the legal guardian. However, Defendant 5 did not discharge the victim even though the victim continuously applied for discharge during the hospitalization period from January 8, 2013 to January 15, 2013.

However, if a person is detained, the crime of confinement is established, and if the crime of confinement is established, the act of not releasing the person by refusing the request for release (request for release) which is naturally accompanied by the act of confinement should be deemed as an act of unbandoned incidental to the crime of confinement, and it does not constitute a separate crime.

Although the court below decided not guilty on the ground that the facts charged constitute a crime or a case where there is no proof of a crime, it is just in its conclusion and there is no error of law by misunderstanding facts or by misunderstanding legal principles which affected the conclusion of the judgment.

5. Determination on the assertion of unfair sentencing (defendants 1, 2, and 3)

We examine both Defendants 1, 2, 3, and the prosecutor's argument on unfair sentencing.

A. Defendant 1

Defendant 1, when the lawsuit seeking division of property brought by Nonindicted 2 was brought disadvantageously, there were unfavorable factors for sentencing, such as: (a) joint with Defendant 2, who was aware of his business and Defendant 3, and forced the victim to be hospitalized in the mental hospital; (b) intrusion upon the victim’s residence; and (c) forged and executed a divorce agreement with the victim’s name; and (d) attempted to commit fraud by means of forging the divorce agreement with the victim; (b) there is a very poor nature of the crime; and (c) the above Defendant still is consistent with the attitude to avoid his responsibility without recognizing his own criminal act.

However, considering the fact that the victim expressed his/her intention that he/she was not subject to punishment for the above defendant when the victim was in the trial, the above defendant was the first offender who has no record of criminal punishment, and other various circumstances that are conditions for sentencing, such as the age, sex, and environment of the above defendant, it is judged that the sentence imposed by the court below is too unreasonable.

This part of the defendant 1's argument is with merit, and this part of the prosecutor's argument is without merit.

2) Defendant 2

Defendant 2 jointly and by Defendant 1 and Defendant 3, detained the victim, who is his mother, in a way that forced hospitalization into a mental hospital, and intrudes on the victim’s residence. There are unfavorable factors for sentencing, such as the fact that the nature of the crime is very poor, and that the above Defendant is also consistent with the attitude to avoid his responsibility, by failing to reflect his mistake.

However, in full view of the fact that the victim was the prior wife of the above defendant, the above defendant appears to have committed the crime of this case according to the orders of the defendant 1, etc. as the first offender who has no record of criminal punishment, and other circumstances that are conditions for sentencing, such as the age, sex, and environment of the above defendant, it is deemed that the punishment imposed by the court below is too unreasonable.

Defendant 2’s assertion of this part is with merit, and this part of the prosecutor’s assertion is without merit.

3) Defendant 3

Defendant 3, in collaboration with Defendant 1 and Defendant 2, forced the victim to be hospitalized into a mental hospital and detained the victim, and infringed upon the victim’s residence, and appears to play a key role in the crime, and there are unfavorable factors for sentencing, such as the above Defendant’s consistent attitude to avoid liability without recognizing his fault.

However, considering the various circumstances such as the age, character, and environment of the above defendant, it is judged that the sentence imposed by the court below is too unreasonable.

This part of the defendant 3's argument is with merit, and this part of the prosecutor's argument is without merit.

5. Conclusion

Therefore, among the appeals filed by Defendant 1, Defendant 2, and Defendant 3, the part of acquittal on the violation of the Mental Health Act due to the failure to state the grounds for restrictions on action among the appeal filed by the prosecutor, and the part of the prosecutor's appeal on the prosecutor's allegation on the violation of the Punishment of Violences, etc. Act (joint confinement) against Defendant 4, Defendant 5, Defendant 6, and Defendant 9, and Defendant 10 are with merit. Thus, without examining the prosecutor's argument on unfair sentencing against Defendant 4, Defendant 5, Defendant 6, and Defendant 7, the part of the judgment below's conviction against the Defendants (including the part on acquittal in the grounds) and Defendant 4, and Defendant 5 pursuant to Article 364 (2) of the Criminal Procedure Act, and the part on the non-guilty on the violation of the Punishment of Violences, etc. Act (joint confinement) against Defendant 5, the prosecutor's remaining acquittal against Defendant 4 and Defendant 5 are reversed, and this decision is dismissed as per Disposition under Article 364 (4) of the Criminal Procedure Act.

On February 5, 2013, Defendant 7 was sentenced to a suspended sentence of 8 months for a violation of the Medical Service Act in the Jeonju District Court's branch court's branch court's order on February 5, 2013, and the said judgment was finalized on March 12, 2013.

Defendant 1 is the victim non-indicted 2 (n and 52 years of age) and the husband of the ○○○ Hospital on December 21, 2007, and the defendant 2 was studying in Canada from 2003 to Canadian. Since May 2008, the victim did not come to and go from the victim. The defendant 3 became aware of the victim after August 2012 as well as the victim's first son, around 2012. The defendant 4 was the director of the ○○○○ Hospital, who is a mental medical institution with mental health specialist and the head of the ○○○○ Hospital, who is a mental health specialist and the head of the ○○○○ Hospital, the head of the △△ Hospital, the director of the △△△ Hospital, the director of the △△△ Hospital, the director of the △△△ Hospital, the head of the △△△ Hospital, the emergency patient transport vehicle affiliated with the defendant 1, the defendant 2 and the defendant 7, the defendant 1 and the defendant 6.

On December 18, 2009, on the ground that additional property, other than the property that was the subject of division of property, was discovered at the time of the divorce with Defendant 1, the victim filed a claim for a trial on division of property against Defendant 1. On February 4, 2013, the Seoul Family Court rendered a judgment that Defendant 1 would pay the victim KRW 1,512,343,981 to the division of property, but the appeal is still pending.

1. Joint principal offenders committed by Defendants 1, 2, 3, 4, 7, 8, and 6

Defendant 1, Defendant 2, and Defendant 3 had the victim forced the victim to be hospitalized into a mental hospital in order to obtain favorable status in the lawsuit during the first instance trial of the case of a claim for division of property.

On December 31, 2012, Defendant 1, Defendant 2, and Defendant 3 asked Nonindicted 5, the chief secretary of the ○○○ Hospital, who was in charge of the above hospital, to find out how to admit the victim. After receiving contact information from Nonindicted 5, who was the chief of the Gangnam branch of the △△△△△ Hospital, the chief secretary of the above hospital. Defendant 3 and Defendant 2, on January 2, 2013, referred Defendant 7 to the effect that “the victim is neither the victim nor the victim was fluent, but the victim was fluent, and I would like to be hospitalized now.” Defendant 7 introduced Defendant 6, the chief secretary of the ○○○○○ Hospital, to Defendant 2 and Defendant 3.

After having interviewed Defendant 2 and Defendant 30,00, Defendant 6 could be hospitalized for a victim who has no diagnosis of mental illness, and had the victim take care of the victim to the hospital through the Gangseo-gu branch of the Emergency Patients Transfer Center operated by Defendant 7.

Therefore, Defendant 2, Defendant 3, and Defendant 8, and employees belonging to the △○ Hospital in the name of the emergency patient transport vehicle in the Mapo-si of Mapo-si of Mapo-si of Mapo-si of Mapo-si of Mapo-si of Mapo-si of Mapo-si of Mapo-si of Mapo-si of Mapo-si of Mapo-si of Mapo-si of Mapo-si of Mapo-si of Mapo-si of Mapo-si of Mapo-si of Mapo-si of Mapo-si of Mapo-si of Mapo-si of Mapo-si of Mapo-si of Mapo-si of Mapo-si of Mapo-si of Mapo-si of Mapo-si of Mapo-si of Mapo-si of Mapo-si of Mana

Then, Defendant 4 met the victim and Defendant 2, and then the victim was in the process of division of property with Defendant 1. Defendant 2 was forced to be hospitalized in the above hospital by the time of January 8, 2013, without the consent of two legal guardians, even though he was aware of the fact that he did not know about the existence of mental illness of the victim since he did not have any contact with the victim at all over five years.

Accordingly, Defendant 1, Defendant 2, Defendant 3, Defendant 7, Defendant 8, Defendant 6, and Defendant 4 detained the victim to ○○○○ Hospital for six days in collaboration with the person who was named in bad faith.

2. Joint criminal conduct by Defendants 1, 2, 3, 5, 9, and 10

Defendant 1, Defendant 2, and Defendant 3 found the victim’s matrimonial engagement Nonindicted 8 at the above ○○○ Hospital and requested a meeting with the victim and the discharge of the victim. Defendant 9 and Defendant 10, an employee of Nonindicted Company 6, who was an employee of the ○○ Hospital, were to be transferred to △△△△ Hospital to keep up for confinement. Defendant 1 and Defendant 10, who was an employee of Nonindicted Company 6 through an employee of the ○○ Hospital.

around 18:00 on January 8, 2013, Defendant 9, and Defendant 10: (a) forced the victim to take a discharge procedure at ○○○○ Hospital; (b) failed to confirm the consent of the legal guardian and the diagnosis of mental illness; and (c) forced the victim who is not an emergency patient to take the emergency transport vehicle of Nonindicted Company 6 to the △△△△△ Hospital located in Ansan-si ( Address 4 omitted); and (d) moved the victim into the emergency transport vehicle of Nonindicted Company 6.

Then, Defendant 5 forced the victim to be hospitalized in the above hospital by January 15, 2013 without the consent of two legal guardians and without the diagnosis of mental illness.

Accordingly, Defendant 1, Defendant 2, Defendant 3, Defendant 9, Defendant 10, and Defendant 5 jointly detained the victim to the △△△ Hospital for eight days.

3. Joint principal offenders committed by Defendants 1, 2, and 3

At around 10:10 on January 4, 2013, Defendant 1, Defendant 2, and Defendant 3 jointly called “the mother of Defendant 2 hospitalized in the hospital. There is no key to give clothes to Defendant 2 who is hospitalized in the hospital. There is no key to do so. I are able to open the door,” and Nonindicted 7 had Nonindicted 7 open a door to the victim’s residence, enter the victim’s house, and intrudes the victim’s residence jointly.

4. Defendant 1

Defendant 1 had the intention to submit to the court a divorce agreement under the name of the victim in order to claim that there was a prior agreement on the division of property with respect to the property that the victim would not have forced mediation in the case of a claim for division of property with the victim for a lawsuit on division of property.

(a) Forgery of private documents;

Defendant 1 stated in the “property division relation” column of the “property division agreement signed on November 6, 2007, which was drafted by Defendant 1 at an infinite place, and on November 6, 2012, Defendant 1, using a computer, stated that the “property division relation” was Defendant 1’s property (including taxes, tax investigations, personal obligations, children’s study expenses) by inserting the name of Nonindicted Party 1 and Nonindicted Party 2’s signature and seal attached to the divorce agreement, which was written in the previous “Seoul-si, Seopo-si, Nowon-gu, Seoul-si, Busan-si, and the (definite omitted), (definite omitted), (definite 2 omitted), and the “profin” was forged for the purpose of exercising the rights and duties of Nonindicted Party 1’s rights and duties by inserting the signature and seal image editing program, etc. by means of a computer.”

(b) Exercising a falsified investigation document;

On November 26, 2012, as Seoul, the Seoul Family Court rendered a false divorce agreement in the 193 Seocho-gu Seoul Family Court’s civil petition reception office, Defendant 1 submitted the forged divorce agreement to the employee who was unaware of the forgery as if it were genuine.

C. Attempted Fraud

In order to win the case of the property division claim in which the victim non-indicted 2 raised against the defendant at the same time and place as the above Paragraph b above, and the victim non-indicted 2 paid damages for delay, Defendant 1 submitted a forged divorce agreement as described in the above paragraph b, and agreed on the division of property with the victim at the time of divorce as stated in the above divorce agreement, and agreed on the division of property with the victim as the object of division at the time of divorce as stated in the above divorce agreement, Defendant 1 attempted to deceiving the judge in charge as if there is no reason to additionally divide the property as alleged by the victim, thereby avoiding the payment of property equivalent to the above money by deceiving him/her as if there is no reason to divide the property, but the claim was not accepted.

5. Defendant 4

(a) Unclaimed districts, such as written consent to hospitalization;

The director of a mental medical institution, etc. may, only with the consent of two persons responsible for protection of mentally ill persons, have the relevant mentally ill persons hospitalized, etc. where he/she judges that hospitalization, etc. is necessary, and shall receive a written consent of hospitalization and a document verifying that he/she is the legal guardian prescribed by Ordinance of the Ministry of Health and Welfare when hospitalized, etc.

Nevertheless, at around January 3, 2013, Defendant 4 received only the written consent of Non-Indicted 2’s first children to be hospitalized by Non-Indicted 2 and hospitalized Non-Indicted 2 to the above hospital at ○○ Hospital located in Suwon-si ( Address 3 omitted) around 16:30 on January 3, 2013.

(b) Failure to state the reasons for restrictions on action;

Where the head of a mental medical institution, etc. restricts mentally ill persons' actions, he/she shall conduct such activities within the minimum limit, and shall state the grounds therefor in the medical records.

Nevertheless, from January 3, 2013 to January 8, 2013, Defendant 4 rejected a request from the above hospital to send correspondences to Nonindicted 2’s National Human Rights Commission of Korea and to have telephone conversationss, and Defendant 4 refused Nonindicted 2’s request on January 5, 2013 and on January 7, 2013, Nonindicted 2’s request to interview Non-Indicted 8, who is the matrimonial partner of Non-Indicted 2, and did not state the reasons therefor in the medical records.

6. Defendant 5 (Unwritten Consent to Hospitalization, etc.)

The director of a mental medical institution, etc. may, only with the consent of two persons responsible for protection of mentally ill persons, have the relevant mentally ill persons hospitalized, etc. where he/she judges that hospitalization, etc. is necessary, and shall receive a written consent of hospitalization and a document verifying that he/she is the legal guardian prescribed by Ordinance of the Ministry of Health and Welfare when hospitalized, etc.

Nevertheless, at around 20:40 on January 8, 2013, Defendant 5 hospitalized Nonindicted 2 at the △△△ Hospital located in Ansan-si ( Address 4 omitted), without obtaining a written consent of the legal guardian and a document verifying that the legal guardian is the legal guardian.

1. The Defendants’ partial statements in the trial records of the court below

1. Legal statement of the witness Nonindicted 2

1. Each statement made by the witness, Nonindicted 8, Nonindicted 9, Nonindicted 10, and Nonindicted 11 in the trial records of the lower court (as to Defendants 1, 2, 3, Defendant 4, Defendant 5, Defendant 6, and Defendant 7)

1. In the trial records of the court below, the witness Nonindicted 12 and Nonindicted 5’s statement (with respect to Defendants 1, 2, 3, 4, 5, 6, and 7)

1. Some statements made by the prosecutor concerning Defendant 2 in the interrogation protocol of the prosecution;

1. Each prosecutor’s statement about Nonindicted 5 and Nonindicted 3

1. Each prosecutor’s protocol of statement against Nonindicted 2 and Nonindicted 9 ( Defendants 8, 9, and 10)

1. Each police protocol on Nonindicted 7, Nonindicted 12, and Nonindicted 5

1. Each investigation report (for persons who have submitted each document requesting a state and a multiple appraisal, the results of such investigation into the currency of a suspect);

1. Report of investigation (as to the submission of the divorce agreement to the defendant 1, the defendant 2, the defendant 3, the defendant 4, the defendant 5, the defendant 6, and the defendant 7);

1. The Seoul Family Court Decision 2010 Mahap287 and each trial record (a right, 90, 93 pages)

1. Full certificate of each registered matter, marriage relation certificate, certified copy, abstract of resident registration, family relation certificate, and removed copy;

1. A written appraisal (a right to investigation records, 731 pages), a divorce agreement, and a certificate;

1. Briefs (a right, 45 pages for investigation records);

1. The medical record book of the ○○○○ Hospital, written consent for hospitalization, each written consent for hospitalization, each notice of hospitalization, medical records of the △△ Hospital, care and treatment register of the △△ Hospital, hospital hospital, pledge of hospitalization, written consent for non-benefit use, written consent for emergency hospitalization, written consent for emergency hospitalization, telephone, and date of enforcement of the restriction on visit (the

1. ◁◁대병원 응급협진기록

1. The medical certificate of Nonindicted 14 (as to Defendants 1, 2, 3, 4, 5, 6, and 7)

1. Details of transactions and each currency content;

1. Records of photographs on the arrest site and CCTV photographs;

1. Previous records of judgment: Criminal records (defendant 7);

1. Article relevant to the facts constituting an offense and the selection of punishment;

A. Defendant 1: Articles 2(2) and 2(1)2 of the Punishment of Violences, etc. Act, Article 276(1) of the Criminal Act (the point of joint confinement), Article 2(2) and 2(1)1 of the Punishment of Violences, etc. Act, Article 319(1) of the Criminal Act (the point of joint residence intrusion), Article 231 of the Criminal Act (the point of joint residence intrusion), Articles 234 and 231 of the Criminal Act (the point of uttering of private documents), Articles 352 and 347(1) of the Criminal Act (the point of attempted fraud)

B. Defendant 2: Articles 2(2) and 2(1)3 of the Punishment of Violences, etc. Act, Article 276(2) of the Criminal Act (the point of joint confinement) and Article 2(2) and 2(1)1 of the Punishment of Violences, etc. Act, Article 319(1) of the Criminal Act (the point of joint residence intrusion) and each choice of imprisonment with prison labor

C. Defendant 3: Articles 2(2) and 2(1)2 of the Punishment of Violences, etc. Act, Article 276(1) of the Criminal Act (the point of joint confinement) and Article 2(2) and 2(1)1 of the Punishment of Violences, etc. Act, Article 319(1) of the Criminal Act (the point of joint residence intrusion) and each choice of imprisonment with prison labor

D. Defendant 4: Articles 2(2) and 2(1)2 of the Punishment of Violences, etc. Act, Article 276(1) of the Criminal Act (the point of joint confinement) and Articles 57 subparag. 2 and 24(1) of the Mental Health Act (the point of not requisition, such as written consent of hospitalization), Articles 57 subparag. 8 and 45(2) of the Mental Health Act (the point of not stating the reason of restriction on behavior), each of the choice of fines

E. Defendant 5: Article 57 subparagraph 2 of the Mental Health Act, Article 24 (1) of the Mental Health Act (the occupation of a district, such as written consent to hospitalization), and the selection of a fine

F. Defendant 6, Defendant 7, Defendant 8, Defendant 9, and Defendant 10: Article 2(2) and 2(1)2 of the Punishment of Violences, etc. Act, Article 276(1) of the Criminal Act (the point of joint confinement) and the choice of each fine

1. Handling concurrent crimes;

Defendant 7: latter part of Article 37 and Article 39(1) of the Criminal Act

1. Aggravation for concurrent crimes;

Defendant 1, Defendant 2, Defendant 3, Defendant 4, and Defendant 5: the former part of Article 37 of the Criminal Act, Articles 38(1)2 and 50 of the Criminal Act

1. Detention in a workhouse;

Defendant 4, Defendant 5, Defendant 6, Defendant 7, Defendant 8, Defendant 9, and Defendant 10: Articles 70(1) and 69(2) of the Criminal Act

1. Order of provisional payment;

Defendant 4, Defendant 5, Defendant 6, Defendant 7, Defendant 8, Defendant 9, and Defendant 10: Article 334(1) of the Criminal Procedure Act

1. Defendants 4 and 5

Defendant 4 and Defendant 5, who are a psychiatrist, are dependent on only Defendant 2’s statement suspected of rationality, and have determined that hospitalization is necessary without any examination and evaluation, forced hospitalization against the victim’s will, confinement of the victim, and not demanding some necessary documents for the hospitalization.

However, Defendant 4 was the first offender, and Defendant 5 did not have the criminal power except for the summary order of KRW 300,000 as a result of the violation of the Medical Service Act around November 2013. The above Defendants’ age, character and conduct, occupation and environment, the circumstances leading to the instant crime and the result thereof, the circumstances before and after the instant crime, and all of the conditions of sentencing as shown in the records and arguments, shall be determined in full view of the following factors.

2. Defendants 6 and 7

Defendant 6 is the head of ○○○ Hospital’s office, and Defendant 7, as an emergency patient transport business operator under the Emergency Medical Service Act, detained Nonindicted 2, who cannot be regarded as an emergency patient, by means of forced transfer to an emergency transport vehicle to the hospital, and the nature of the crime is very poor.

However, Defendant 6 has no record of crime exceeding a fine; Defendant 7 has been tried at the same time with a case where the judgment was rendered earlier; and Defendant 7 has determined the same sentence as the order by taking full account of the following factors: the age, character and conduct, occupation and environment of the above Defendants; the circumstances before and after the crime was committed; the circumstances before and after the crime was committed; and all the sentencing conditions as shown in the records and arguments of this case.

6. Defendants 8, 9, and 10

Defendant 8, Defendant 9, and Defendant 10, as an employee of an emergency patient transport service company, have detained Nonindicted 2, who cannot be considered as an emergency patient, by force, a non-indicted 2, who is in an emergency transport vehicle, to the hospital, and the nature of the crime is very poor.

However, Defendant 8 is the primary offender, Defendant 10 has no criminal record since 1999, and the above Defendants’ age, character and conduct, occupation and environment, the circumstances and result of the instant crime, the circumstances before and after the instant crime, and all the conditions of sentencing as shown in the records and arguments, shall be determined in full view of the following factors.

The summary of the charge of violation of the Mental Health Act due to the failure to state the grounds for restriction on behavior against Defendant 5 is as stated in the above 3-C-2, but this constitutes a case where there is no proof of criminal facts for the same reason as seen in the same paragraph, and thus, it is not guilty pursuant to the latter part of Article 325 of the

Judges Lee Jae-nam (Presiding Judge)