[1] Requirements for recognizing mental disorder as stipulated in Article 10 of the Criminal Act for persons with mental disorder

[2] Whether it constitutes a mental disorder solely on the basis of the fact that a child’s acopia certificate exists (negative), and the standard for deeming that the child’s acopia certificate has reached a mental disorder

[3] The case reversing the judgment of the court below that held that the defendant was in a state of mental disorder without specifically deliberating and examining various circumstances, such as the degree and contents of the defendant's child identification certificate at the time of crime

[1] The mental disorder stipulated in Article 10 of the Criminal Act is a biological factor and needs to be deemed to be lacking or reduced in the ability to discern things due to mental disorder as well as mental disorder such as mental illness or abnormal mental condition. Thus, even if a person with mental disorder is a person with normal ability to discern things or control behavior at the time of committing the crime, it cannot be deemed to be a mental disorder if he/she had normal ability to control things or behavior.

[2] Unless there are special circumstances, it cannot be deemed that a person with a mental disorder requires an act that is not expected to control his impulse and to require compliance with the law. Thus, it is hard to say that a son who had a mental disorder before scambling appeared due to a sexual act against scambling, sexual impulse, and sexual behavior repeatedly causing sexual interest in terms of sexual aspect, and the situation where a scambia has a disease such as a scambia does not constitute a mental disorder which is the reason for the reduction or exemption of punishment by itself. However, it is reasonable to deem that the symptoms are very serious, and there is room to recognize mental disorder as being equal to that of the person with a mental disorder in its original meaning. In such cases, the mental disorder can be determined in full view of the degree of scambia, motive and cause of the crime, background and form of the crime, act before and after the crime, destruction of evidence, evidence of the defendant, degree of the crime before and after scambia and its nature in the trial court.

[3] The case reversing the judgment of the court below that judged that there was a state of mental disorder without specifically deliberating and examining various circumstances, such as the degree and content of the certificate of child care at the time of the crime

[1] Article 10 of the Criminal Act / [2] Article 10 of the Criminal Act / [3] Article 10 of the Criminal Act

[1] Supreme Court Decision 92Do1425 delivered on August 18, 1992 (Gong1992Ha, 2805) / [2] Supreme Court Decision 94Do581 delivered on May 13, 1994 (Gong1994Sang, 1752) Supreme Court Decision 94Do3163 delivered on February 24, 1995 (Gong195Sang, 1515)

Defendant

Prosecutor

Attorney Lee Do-apap

Seoul High Court Decision 2006No898 delivered on October 19, 2006

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

According to the reasoning of the judgment below, the court below determined that the defendant was unable to attend the school by rapeing the female under the age of 9 on around 1983 where he was a middle student, and the content of the repeated crime with respect to the defendant was raped, and the defendant was sexual assaulted by his father at the age of 6 at an elementary school as a result of the clinical examination against the defendant. After that, the defendant had continuously been sexual intercourse with his father at the age of 6 at the time of the crime of this case, he tried to feel sexual humiliation only for his sexual intercourse or sexual wound, and investigated the defendant's image was very irregular and functional disorder, and the defendant's emotional problem such as depression, depression, shock, mobility, etc. was found. At the time of the crime of this case, the court below determined that the defendant was presumed to have no mental disorder, which caused the defendant's mental disorder due to his weak mental disorder, and thus, the defendant did not have any mental disorder at the time of the crime of this case.

Mental or physical disorder stipulated in Article 10 of the Criminal Act is a biological element and needs to be determined as lacking or reduced in the ability to distinguish things from that of an object due to such psychological disorder, other than mental disorder such as mental disorder or abnormal mental condition. Thus, even though a person with mental disorder is a person with normal mental disorder or behavior control ability at the time of committing the crime, it cannot be deemed mental or physical disorder (see, e.g., Supreme Court Decision 92Do1425, Aug. 18, 1992). Barring special circumstances, it cannot be deemed that a person with mental disorder requires acts that can not be expected to restrain his impulse and comply with the law. Thus, it cannot be said that the defendant's mental or physical disorder is required to be prevented from being committed, and if it appears that the mental disorder occurred before and after the crime was committed, it appears that it appears that it appears that there is a serious mental or physical disorder like the defendant's mental disorder in terms of sexual defect and that there is considerable reason for mitigation of evidence before and after the crime were 9.

According to the records, the facts that the defendant appears to be relatively clearly memory of the contents of the crime in this case; the defendant did not assert that there was a disease, such as her child birth, etc., at the time of being tried before the previous trial due to sex offense against the child in this case; there is no evidence to view that the defendant received treatment prior to the crime in this case; although the defendant submitted a diagnosis after being diagnosed with her child birth certificate during the trial of the court below, he did not receive treatment at all even after being diagnosed; rather, he appears to have refused treatment; rather, each of the crimes in this case appears to be difficult to be contingent; although the defendant appears to have been in progress with her wife only three years prior to the crime in this case; however, it appears that the defendant had been in a normal family life, such as her marriage with an adult woman before the crime in this case; it appears that the defendant had no mental influence on the defendant's mental disorder by being affected by the defendant's emotional observation or evidence of mental disorder, and that there was lack of mental awareness and evidence in the process.

Examining these circumstances in light of the legal principles as seen earlier, there is room for doubt as to whether the Defendant’s ability to discern things or make decisions, other than the circumstance that there was a mental disorder called Maternia at the time of committing the instant crime, may have been deemed to have been weak enough to view the Defendant’s ability to discern things or make decisions, and whether the degree of the Defendant’s Maternia may be deemed to be equal to the person with a mental disorder within the original meaning.

Therefore, the court below should have deliberated on the degree and contents of the defendant's opiaia certificate, the motive and cause of each of the crimes in this case, the background and means of the crimes, the behavior and mode of the defendant before and after the crimes, the defendant's behavior before and after the crimes, the method and attitude of defense and defense in the investigation and trial court, the relation between the defendant's nature before and after the outbreak of opiaia certificate, and its degree of relation to the crime. After examining whether the defendant's opiaia certificate was serious to the extent that it can be evaluated as equal to the person with mental disorder in the original meaning, and whether the defendant's ability to discern things or make decisions has decreased due to other circumstances than the circumstance where the mental disorder in the opiaia certificate exists, and should have judged whether the defendant committed each of the crimes in this case in the state of mental disorder.

Nevertheless, the court below's determination that the defendant was in a state of mental disability at the time of each of the crimes of this case on the sole basis of the circumstances stated in its holding without specifically examining and examining these circumstances constitutes an unlawful act affecting the conclusion of the judgment by misunderstanding the legal principles as to mental and physical disorder. Thus, the ground of appeal pointing this out has merit

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Hwang-sik (Presiding Justice)