2018Do12973 Violation of the Mental Health Act

Defendant 1 and two others

Prosecutor

Law Firm LLC (For the defendant)

Attorney Kang-hwan et al., Counsel for the defendant

Suwon District Court Decision 2018No333 Decided July 26, 2018

may 7, 2021

All appeals are dismissed.

The grounds of appeal are examined.

1. Summary and key issues of the facts charged

The charge against the Defendants is against the former Mental Health Act (wholly amended by Act No. 14224, May 29, 2016; hereinafter referred to as the “former Mental Health Act”). The summary of the charge is as follows. The Defendants, in collusion with the director of a hospital or the non-indicted, were hospitalized in collusion with the director of a hospital or the director of a mental health clinic affiliated with the director of a mental medical institution (the director of a hospital omitted), and were hospitalized without any document verifying the person who is the legal guardian at the time of hospitalization by the legal guardian.

The key issue is whether the Defendants can be deemed to have committed a crime in collusion with the head of a hospital in relation to the part of the selective charges as above, and whether the Defendants can be punished as joint penal provisions under the former Mental Health Act in relation to the part.

2. Whether the Defendants can be deemed to have violated the former Mental Health Act in collusion with the head of the hospital and the Nonindicted Party

A. Article 24(1) of the former Mental Health Act provides that “The director of a mental medical institution, etc. may, only where there exist two legal guardians (in cases where there are only one legal guardian, the consent of one legal guardian) and the director of a mental health department deemed necessary to be hospitalized by a mental health specialist, etc., he/she may have the relevant mentally ill person hospitalized, etc., and at the time of hospitalization, etc., he/she shall obtain a written consent of hospitalization, etc. and a document verifying that the legal guardian is the legal guardian.” Article 57 subparag. 2 of the same Act provides that “A person who has not received a written consent to hospitalization or a document verifying that he/she is the legal guardian in violation of Article 24(1) shall be punished. In light of the form and purport of the provision, a violation of the former Mental Health Act due to a violation of the duty to receive documents verifying

The co-principal of the crime of violating the former Mental Health Act due to the violation of the duty to receive the petition, which is a crime of omission, is jointly imposed on several persons, but all of them did not perform the duty. According to the above provision, the duty to receive documents, etc. verified by the legal guardian is granted only to the director of the mental medical institution, etc., and the medical specialist of the mental health department, who works in a place other than the director of the mental medical institution, etc., does not bear the duty to receive documents, etc. verified by the legal guardian as prescribed in the above provision.

B. The lower court upheld the judgment of the first instance court that acquitted the Defendant as follows. Article 24(1) of the former Mental Health Act provides that, in the case of hospitalization by the legal guardian, the legal guardian is the director of a mental medical institution, etc., the person liable to receive documents verifying that the mentally ill person is the legal guardian in the course of hospitalization. The Defendants, who are merely a medical specialist belonging to the instant hospital, cannot be deemed to have conspired with the hospital head non-indicted.

According to the above legal principle, the Defendants, a medical specialist of mental health in the instant hospital, do not belong to the legal guardian’s duty to receive documents, etc., and thus, cannot be said to be jointly granted the Defendants with the duty to receive documents, etc. verifying the legal guardian. Therefore, the Defendants cannot be deemed joint principal offenders of the crime of violating the former Mental Health Act due to the violation of the duty to receive documents, etc.

In the lower judgment, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on co-principals committed in violation of Article 57 Subparag. 2

3. Whether the Defendants can be punished as joint penal provisions under the former Mental Health Act

The lower court upheld the judgment of the first instance court which acquitted the Defendant on the part of the selective charges as follows. In full view of the content of Article 24 of the former Mental Health Act, the hospitalization process by the legal guardian conducted at the instant hospital, and the actual business practices of mental medical institutions, etc., the Defendants, as a medical specialist belonging to the instant hospital, play a medical role in diagnosing the necessity of hospitalization with respect to mentally ill persons, and do not constitute a person who is in charge of receiving documents by which the legal guardian can actually be identified.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine, the lower judgment did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on joint penal provisions under Article 58

4. Conclusion

The prosecutor's appeal is dismissed in its entirety as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Dong-won

Justices Kim Jae-hyung

Justices Min You-sook

Justices Noh Tae-ok