[1] Whether a “mental patient” under Article 3 subparag. 1 of the Mental Health Act includes a person suspected of having mental disorders, other than a person who has been medically diagnosed with mental illness or mental disorder (affirmative)

[2] In a case where Defendant A and B, who are a mental health specialist, were indicted for violating the Punishment of Violences, etc. Act (joint confinement) on the ground that they forced the victim to leave the emergency vehicle to a hospital by force, jointly with Defendant C et al. of the victim’s children, the case holding that it is difficult to conclude that Defendant A and B had the intent to commit the crime of confinement, or their acts constitute the act of confinement under the Criminal Act

[1] Article 3 subparag. 1 of the Mental Health Act defines a mentally ill person as a person with mental illness (including a mental disorder), personality disorder, alcohol, drug addiction, and other non-psychopathic mental disorder. However, in light of the purpose of the law of treatment and protection of a mentally ill person, the mentally ill person mentioned above includes not only the person who has been diagnosed with mental illness or mental disorder but also those who are suspected of such mental disorder.

[2] In a case where Defendant A and B, who are a mental health specialist, were prosecuted for committing a violation of the Punishment of Violences, etc. Act (joint confinement) on the ground that they forced the victim to leave the emergency transport vehicle by force with Defendant C et al., jointly with the victim’s children, the case holding that the court below erred by misapprehending the legal principles in determining that the act of hospitalization of Defendant A and B constitutes a crime of confinement even if there is no intention to commit the crime of confinement or difficulty in considering the need for continuous observation or accurate diagnosis for diagnostic investigation or accurate diagnosis as well as the statement of Defendant C, who is a legal guardian, and the result of direct face-to-face medical examination of the victim.

[1] Articles 1 and 3 subparag. 1 of the Mental Health Act / [2] Article 276(1) of the Criminal Act, Article 2(1)2 and (2) of the former Punishment of Violences, etc. Act (Amended by Act No. 12896, Dec. 30, 2014); Articles 2(1) and (5), 3 subparag. 1, 22(1), and 24 of the Mental Health Act

[1] Supreme Court Decision 2001Do5222 Delivered on December 24, 2001

Defendant 1 and five others

Prosecutor and Defendants

Attorney Ha-dong et al., Counsel for the defendant

Suwon District Court Decision 2014No6750 decided May 13, 2015

The part of the judgment of the court below regarding the non-guilty of Defendants 4 and 5 as to the violation of each Mental Health Act due to the refusal to restrict or discharge freedom, including communication, is reversed, and that part of the case is remanded to the Suwon District Court Panel Division. All of the appeals by Defendants 1, 2, 3, and 6 and the prosecutor's appeals by the prosecutor as to the remainder of innocence are dismissed.

The grounds of appeal are examined.

1. Determination on Defendant 4 and Defendant 5’s grounds of appeal

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

(1) The summary of this part of the facts charged is that: (a) Defendant 4 and Defendant 5 were a medical specialist of mental health department, jointly with Defendant 1, Defendant 2, Defendant 3, and Defendant 6; (b) forced the victim to an emergency transport vehicle on January 3, 2013 and forced the emergency transport vehicle to ○○○ Hospital; and (c) detained the victim by hospitalized the said hospital until January 8, 2013; and (d) Defendant 5 was jointly with Defendant 1, Defendant 2, and Defendant 3 on January 18, 2013 and detained the victim by forcing the victim to the △△△△ Hospital on the part of the emergency vehicle on the part of Defendant 1, Defendant 2, and Defendant 3 on January 18, 2013 and detained the victim by hospitalized the victim to the said hospital until January 18, 200.

For the reasons indicated in its holding, the lower court determined that the diagnosis of Defendant 4 and Defendant 5’s “in need of hospitalization” constituted a crime of confinement, and found the above Defendants guilty of this part of the facts charged, on the grounds that the diagnosis was conducted by the said Defendants with the knowledge of such fact while the victims were illegally arrested and detained, and that it was conducted without any examination or evaluation based only on Defendant 2’s statement suspected of rationality. Therefore, it is difficult to view that the act of the said Defendants’ forced hospitalization against the victim’s will constitutes a crime of confinement.

(2) However, the lower court’s determination is difficult to accept for the following reasons.

(A) Article 24(1) of the Mental Health Act provides that the director of a mental medical institution, etc. may hospitalization of the relevant mentally ill person only where the person responsible for protection of the mentally ill person consented and the director of the mental health department deems it necessary to be hospitalized by a mental health specialist. In the case of hospitalization, the director of the mental health medical institution, etc. shall obtain written consent to hospitalization prescribed by Ordinance of the Ministry of Health and Welfare and documents confirming that the person responsible for protection is the person responsible for protection. Paragraph (2) of the same Article provides that when the director of the mental health department diagnoses the necessity of hospitalization of the mentally ill person, the director of the mental health medical institution, etc. shall attach to the written consent of hospitalization pursuant to Paragraph (1) that “where the patient suffers from a mental illness that is likely to receive hospitalized treatment or recuperation in a mental medical institution, etc. or that “where hospitalization is necessary

In light of the purport of Article 22(1) of the above Act, which provides that the legal guardian of a mentally ill person shall not be hospitalized without a diagnosis by a mental health specialist, and the purport of Article 22(1) of the above Act, and that all mentally ill persons shall be guaranteed dignity and value as human beings and shall always encourage voluntary hospitalization with respect to a mentally ill person who needs hospital treatment. In light of the basic ideology of Article 2(1) and (5) of the above Act, in cases of hospitalization by a legal guardian as provided under Article 24 of the above Act, it is necessary for the director of a mental medical institution to directly examine and diagnose the mentally ill person in addition to the consent of the legal guardian, and thereby determine the hospitalization by the director of the mental medical institution (see Supreme Court Decision 200Do4415, Feb. 23, 2001).

Meanwhile, Article 3 subparag. 1 of the above Act defines a mentally ill person as a person with mental illness (including a mental disorder), personality disorder, alcoholism, drug addiction, and other non-psychological disorders. However, in light of the purpose of the law of treatment and protection of a mentally ill person, the mentally ill person mentioned above includes not only the person who has been diagnosed with mental illness or mental disorder but also the person who is suspected of such mental disorder (see Supreme Court Decision 201Do522, Dec. 24, 2001).

(B) Review of the reasoning of the lower judgment and the record reveals the following facts.

① On January 3, 2013, at around 16:30 on January 16, 2013, the victim had arrived at the ○○○ Hospital and had a very roughly interested state, and Defendant 4 attempted to talk with the victim to find out the past history or other symptoms of the victim while holding an interview, but the victim did not continue to talk with the victim that “the victim has been forced to go beyond five years because of the division of property 15 billion won.”

② At the time, Defendant 4, who was the victim’s son, embezzled KRW 800 million from Defendant 2, who was the victim’s son in 2002, and embezzled the victim’s public funds of Defendant 1, who was the husband before 2002, without good cause, and took action, such as aggressive behavior to children, assaulting his or her children, and threatening them, etc., and Defendant 2 became aware of the fact that Defendant 2 went through without contact with the victim for a period of five years. Defendant 2 told Defendant 4, who was suffering from the victim’s thmthm state, that “the victim’s humf was a humf that was abnormal.”

③ In full view of these circumstances, Defendant 4 diagnosed the victim as “in need of hospitalized treatment due to a victim’s accident and aggressive behavior,” and determined that Defendant 4 should conduct the victim’s mental and physical condition assessment, BECK Postal assessment, condition-specific draft assessment, etc. as a mental and clinical examination.

④ Defendant 4 had an interview with the victim several times during which the victim was hospitalized, and had a warning that there was a dispute over property between Defendant 1 and Defendant 1. On January 4, 2013, Defendant 4 had a telephone called at an attorney-at-law office who was in charge of litigation by the victim, and confirmed on January 7, 2013 that division of property between the victim and Defendant 1 is pending, and released the victim around January 18, 2013.

⑤ On the other hand, around January 8, 2013, Defendant 5 met with the victim who was transferred to △△△△ Hospital on January 8, 2013. At that time, the victim told Defendant 5 that “family members were forced to be hospitalized. There have been detention.”

⑤ At the time Defendant 2 told Defendant 5 that “the victim abused himself, abused the victim’s emergency physical punishment, knife the knife, and knife the victim. The Defendant 2 told Defendant 5 to the effect that “the victim abused himself, embling the victim’s emergency physical punishment, and knife the knife, snife the surrounding people for a period of several years, snife, and snife, snife, and brue.”

7) Accordingly, Defendant 5 determined that the victim had a possibility of causing disability, and determined hospitalization after stating “inception for hospitalized treatment due to a network disorder, mental disorder, etc.” in the column of recommendation for hospitalization of the legal guardian’s written consent of hospitalization. On January 11, 2013, Defendant 5 conducted a psychological examination for the victim, and interviewed the victim several times until January 18, 2013, when the victim discharged.

(8) Among the literature of mental medicine, the term “in cases of a net disability suspected of the victim” described that “in cases of a medical treatment rather than hospitalization, it would be effective, but the risk of suicide or other suicide, a serious disorder in occupational and social functions, the aggravation of family relationship caused by the network, and the necessity of a diagnostic investigation, etc., consideration of hospitalization is given.” The letter of request for examination of medical records by the first instance court for examination of the medical records concerning the head of the Ansan Hospital of the Korea National University Medical Center, which was issued by the first instance court, states that “when continuous observation or special inspection is needed for a correct diagnosis” is one of the most important cases.

In addition, according to the above medical record appraisal request letter, it can be presumed that the symptoms described in the medical record of the ○○○○ Hospital for the victim include mental franchisive disease, the addition of a manic disorder, the dynamic disorder, the personality disorder, the use of materials, and other diseases. In the case of a deadly handicapped or a mental franchisive disease, there are many cases where the symptoms of the patient are lacking, so the report by the patient and his/her guardian for the symptoms is different. Even if the symptoms reported by the patient and his/her guardian are different and it is difficult to confirm the fact without any discrepancy, the doctor in charge may determine that the medical treatment is necessary if the patient's diagnosis is likely to have mental illness, and there are many cases where the patient's diagnosis is conducted based on the report by his/her family members (child, siblings, etc.) who can be trusted by social norms.

9) As Defendant 2’s birth, Nonindicted Party 1, who was studying in Canada, testified in the first instance court to the effect that the victim gave rise to the need for hospitalized treatment, and that the victim gave consent to hospitalized treatment. However, Defendant 4 and Defendant 5 did not receive a written statement stating that there was a written consent to hospitalized by Nonindicted Party 1, who was the legal guardian, or his expression of consent.

(C) On the other hand, in the case of mental illness, such as a dynamic disorder, the patient’s hospitalization appears to have been considered even when continuous observation or special inspection is required for diagnosis or accurate diagnosis. Defendant 4 and Defendant 5 provided diagnosis that hospitalization is necessary based on not only the statement of Defendant 2, who is the legal guardian, but also on the basis of the result of medical examination conducted directly face-to-face contact with the victim. Thus, even if the above Defendants 4 and 5 did not fulfill the best care as a mental health specialist or did not pay attention, it may also be deemed that the above Defendants hospitalized the victim with the intent to accurately diagnose and treat the victim. Thus, it is difficult to conclude that the above Defendants committed the crime of confinement, barring special circumstances, such as that the above Defendants knew the victim that there was no need to be hospitalized, or that the above Defendants’ act of forcing the victim to an emergency vehicle to transfer the victim to a hospital, and that the Defendants did not receive a separate consent to arrest or detain the victim, even if the above Defendants did not constitute an unlawful confinement.

Nevertheless, solely on the grounds stated in its reasoning, the lower court determined that the examination that the above Defendants’ “involuntary hospitalization” did not constitute a diagnosis by a mental health specialist under Article 24 of the Mental Health Act, and thus, the act of hospitalized the victim constitutes a crime of confinement. In so doing, the lower court erred by misapprehending the legal doctrine on the requirements and procedures for hospitalization by a legal guardian under the Mental Health Act, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error

B. As to the violation of the Mental Health Act

Examining the reasoning of the lower judgment in light of the evidence admitted, 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 Article 24 of the Mental Health Act, contrary to what is alleged in the grounds of appeal, in finding the Defendant guilty of violating each of the Mental Health Act due to nonperformance of requisition, such

Meanwhile, Defendant 4 filed an appeal against the violation of the Mental Health Act due to the failure to state the grounds for restriction on action in the lower judgment. However, there is no indication in the petition of appeal on the grounds of appeal nor any statement in the grounds of appeal on the grounds of objection.

2. Determination on Defendant 1 and Defendant 2’s grounds of appeal

A. As to Defendant 2’s violation of the Punishment of Violences, etc. Act (joint ascendant confinement)

In the case of hospitalization by a legal guardian under Article 24 of the Mental Health Act, even if the consent of the legal guardian is given, a psychiatrist is diagnosed by a mental health specialist in direct face-to-face diagnosis and in need of hospitalization, and accordingly, the director of a mental medical institution shall determine hospitalization. Accordingly, when a mentally ill person resists the hospitalization measures that meet these requirements, the exercise of physical strength within the reasonable scope from a mental and social perspective is allowed (see Supreme Court Decision 2000Do4415, Feb. 23, 2001).

In addition, "act which does not violate social norms" 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 in its hinterland. Whether certain act is justified as an act that does not violate social norms and thus, the illegality of the act is excluded should be determined on an individual basis, based on specific circumstances and circumstances, the following requirements should be met: (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) urgency; and (v) supplementaryness that there is no other means or method other than the act (see Supreme Court Decision 2010Do2680, May 27, 2010).

After finding the facts as indicated in its reasoning based on the adopted evidence, the court below rejected the defendant 2's allegation that the act of forcing the victim to be hospitalized into an emergency transport vehicle without a diagnosis and diagnosis of a psychiatrist who face-to-face mental health specialist or hospitalization decision of the head of the ○○○ Hospital, or forced the victim to △△△ Hospital at the ○○○○ Hospital cannot be deemed as an act based on the Mental Health Act. The defendant 2, who is the child, was aware that the victim, who was the mother, was forced to undergo the mental treatment voluntarily before he forced to undergo the mental treatment, or that such act did not violate the law of compulsory hospitalization of the victim, on the ground that it was very urgent when the victim was hospitalized by the head of the Si/Gun/Gu after consultation with a medical specialist, or when the procedure of hospitalization by the head of the ○○○ Hospital was taken by the head of the ○○○ Hospital, as prescribed in Article 26 of the above Act, and that there was no violation of the law of compulsory hospitalization of the victim.

Examining the aforementioned legal principles and evidence duly admitted, the lower court did not err in its judgment by failing to exhaust all necessary deliberations as alleged in the grounds of appeal, or by misapprehending the legal doctrine on intent of the crime of confinement, recognition of illegality, and Article 24 of the Mental Health Act.

B. As to the assertion of misapprehension of the legal principles on the grounds for exclusion of illegality in relation to professional judgment of a psychiatrist, etc.

Defendant 4 and Defendant 5 are difficult to readily conclude that the crime of confinement is established against the act of hospitalized a victim.

However, in light of the requirements for hospitalization by the legal guardian under the Mental Health Act and the reasoning of the lower judgment, and the relationship between Defendants 2 and 1, the victim’s status, and the motive, process, etc. of Defendant 2 hospitalized the victim to the mental hospital, even if the decision of hospitalization with the victim was made by Defendant 4 and Defendant 5, who is a mental health specialist, even though the decision of hospitalization with the victim was made by Defendant 4 and Defendant 5, Defendant 2 appears to have been forced to be hospitalized to the mental hospital for other purposes than the victim’s treatment, and thus, such act by Defendant 2 cannot be deemed unlawful.

Therefore, the lower court’s rejection of the assertion that Defendant 2’s act was not unlawful as the hospitalization was determined based on the professional judgment of a psychiatrist is justifiable. In so doing, contrary to the allegations in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles on

C. As to Defendant 1’s violation of the Punishment of Violences, etc. Act (joint confinement)

The court below affirmed the judgment of the first instance which convicted Defendant 1 of the facts charged that the victim was forced to be hospitalized in ○○○ Hospital and △△△△ Hospital in collaboration with Defendant 2 and Defendant 3, and maintained it as it is, on the ground that the judgment of the court below was justifiable.

In light of the relevant legal principles and the evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles on the requirements and scope of establishment of joint principal offenders, recognition of conspiracy relations, and possibility of recognition of illegality, contrary to what

D. As to the violation of the Punishment of Violences, etc. Act (joint residence infringement)

Examining the reasoning of the lower judgment in light of the relevant legal principles and the evidence duly admitted, the lower court did not err by failing to exhaust all necessary deliberations or by misapprehending the legal doctrine on the establishment of a crime of intrusion upon residence, the scope of recognition of the grounds for exclusion of illegality, and recognition of illegality, as alleged in the grounds of appeal.

E. As to Defendant 1’s forgery of private documents, uttering of private investigation documents, and attempted fraud

The court below affirmed the judgment of the first instance which convicted Defendant 1 of the charge of forging private documents, uttering of a falsified investigation document, and attempted fraud as it is, on the ground that the judgment of the court below was justifiable.

Examining the relevant legal principles and the evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine regarding the crime of forging private documents, the crime of uttering of falsified documents, the scope of establishment of the crime of attempted fraud, and the probative value of the protocol, or by omitting judgment,

3. Judgment on Defendant 3’s grounds of appeal

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

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not exhaust all necessary deliberations, as alleged in the grounds of appeal, and did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

In addition, as seen earlier in the determination on Defendant 1 and Defendant 2’s grounds of appeal, Defendant 3’s act of forcibly hospitalized the victim for the same reason cannot be deemed to be unlawful. Therefore, the lower court did not err by misapprehending the legal doctrine on justifiable act, contrary to what is alleged in the grounds of appeal, thereby affecting the conclusion of the judgment.

B. As to the violation of the Punishment of Violences, etc. Act (joint residence infringement)

Defendant 3 also appealed against the violation of the Punishment of Violences, etc. Act (joint residence) in the judgment of the court below. However, there is no indication in the petition of appeal on the grounds of appeal nor any statement in the grounds of appeal on the grounds of appeal.

4. Judgment on Defendant 6’s ground of appeal

Based on the adopted evidence, the lower court found Defendant 6 guilty of all the charges against Defendant 6, on the following grounds: (a) aware of the fact that Defendant 6 had no diagnosis of a mental health specialist with respect to the victim and forced the victim to put the victim into an emergency transport vehicle to the hospital; and (b) knew of the fact that there was no diagnosis of a mental health specialist with respect to the victim.

Examining the relevant legal principles and evidence duly admitted, the lower court did not exhaust all necessary deliberations, contrary to what is alleged in the grounds of appeal, and 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 principles on the Emergency Medical Service Act

5. As to the Prosecutor’s Grounds of Appeal

A. As to the violation of each Mental Health Act due to the refusal to restrict and discharge freedom, such as communication with Defendant 4 and Defendant 5

The lower court determined that each of the above violations of the Mental Health Act committed against Defendant 4 and Defendant 5 did not constitute a separate crime on the premise that the crime of confinement was established. However, on the same ground as seen earlier, the lower court reversed the above Defendants’ violation of the Punishment of Violences, etc. Act (joint confinement) on the ground that it did not need to determine on the grounds of appeal by the prosecutor. Therefore, this part of the lower court’s judgment cannot be maintained

B. As to Defendant 5’s violation of the Mental Health Act due to Defendant 5’s failure to state the grounds for restricting action

For reasons indicated in its holding, the lower court rendered a judgment not guilty of this part of the facts charged on the ground that Defendant 5 restricted the victim’s freedom to act and stated the reason in the medical records, and that there is no other evidence to recognize the facts charged.

In light of the relevant legal principles and records, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the violation of the Mental Health Act.

6. Conclusion

Of the judgment of the court below, each of the above defendants 4 and 5 violated the Punishment of Violences, etc. Act (joint confinement) has grounds for reversal as seen above, and since each of the above crimes and the above defendants' violation of the Mental Health Act committed a concurrent crime under the former part of Article 37 of the Criminal Act, one of the judgment below's convictions against the above defendants was pronounced. Thus, the whole convictions against the above defendants shall be reversed.

On the other hand, on the grounds as seen above, the part of innocence as to the violation of the Mental Health Act due to the refusal to restrict and discharge freedom, such as communication with Defendant 4 and Defendant 5, cannot be maintained, and thus, we decide to reverse it together.

Therefore, the part of the judgment of the court below as to the acquittal of Defendants 4 and 5 on the violation of the Mental Health Act due to the refusal to restrict and discharge freedom, including communication, is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The appeal by Defendants 1, 2, 3, and 6 and the prosecutor's appeal by the remainder of acquittal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)