2013Mo318 A. Violation of the Mental Health Act

(b) Violation of the Medical Service Act;

1.(a)D, doctor

2.(a)A and Company A;

3.(a)(b)K as an incorporated foundation;

Attorney (a private election for all the defendants)

July 10, 2014

1. Defendant A’s imprisonment with prison labor of 10 months, Defendant D’s fine of 2,00,000 won, and Defendant Incorporated Foundation’s penalty of 5,00,000 won, respectively.

2. When Defendant D does not pay the above fine, the above Defendant shall be confined in a workhouse for the period calculated by converting 50,000 to one day.

3. With respect to Defendant A, the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive;

4. To order Defendant A to provide community service for 120 hours.

5. To issue an order for provisional payment of the amount equivalent to the above fines to Defendant D or Incorporated Foundation K.

Criminal History Office

Defendant A is the chief of the Department of Department of the K 00 Hospital affiliated with the K, which is an incorporated foundation at the time of smuggling, and Defendant D is the internal doctor of the above 00 Hospital.

1. Defendant A

On November 7, 2012, at the above 00 hospital, the Defendant sent the above 00 hospital E and the guardian F to the Seoul Station square to provide convenience to the many unspecified elderly people. The Defendant: (a) agreed to provide convenience to the above 00 hospital; (b) on the 19:00 day; (c) on the 19:00 day, the Defendant: (d) agreed to provide the patient with convenience to the above 00 hospital; (b) the elderly B and C, who were in the Seoul Station square, were hospitalized at the 00 hospital; (c) provided the treatment of alcohol addiction; and (d) provided the 50,000 won simplified cost and tobacco per week to the 50,000 won tobacco per month; and (d) agreed to provide the patient with convenience in transportation at the 23:500 on the same day; and (e) the Defendant promised to provide the patient with convenience in transportation.

2. Joint criminal conduct by Defendant A and Defendant D

No person shall, except in cases of emergency hospitalization, hospitalize a mentally ill person at a mental medical institution, etc. without a diagnosis by a mental health specialist.

Nevertheless, the Defendants conspired to be hospitalized in the above 00 hospital B and C at their own discretion without a diagnosis of a psychiatrist at around 23:50 on the same day, such as the above 00 hospital (hereinafter “the above 00 hospital”).

3. The defendant Incorporated Foundation K

A. Violation of the Medical Service Act

A, who is an employee of the defendant, promised to provide money and valuables to patients as stated in the above Paragraph 1, and solicited patients to medical institutions for commercial purposes by offering transportation convenience.

B. Violation of the Mental Health Act

As stated in the above paragraph (2), A and D, who are the employees of the defendant, voluntarily hospitalized patients in the above closed mental ward protection room without a diagnosis by a psychiatrist, and committed a violation of the Mental Health Act.

Summary of Evidence

1. The Defendants’ partial statements in the second trial records;

1. Protocol concerning the interrogation of the Defendants by the prosecution

1. Each police statement made to B, C, F, and E;

1. Each internal investigation report (to be attached to telephone conversations, transitional recording paper, etc.);

Application of Statutes

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

A. Defendant D: Article 55 subparag. 5 and Article 40(1) of the Mental Health Act, Article 30 of the Criminal Act (Selection of Fine)

(c) K that is a foundation of defendant: Articles 58, 5 subparagraph 5, and 40 (1) of the Mental Health Act (a violation of the Mental Health Act) and Articles 91, 88, and 27 (3) of the Medical Service Act (a violation of the Medical Service Act);

1. Aggravation for concurrent crimes;

Defendant A, Incorporated Foundation K: The former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act

Defendant D: Articles 70 and 69(2) of the Criminal Act

1. Suspension of execution;

Defendant A: Article 62(1) of the Criminal Act

1. Social service order;

Defendant A: Article 62-2 of the Criminal Act

1. Order of provisional payment;

Defendant D and Incorporated Foundation K: Determination on the Defendants and defense counsel’s assertion under Article 334(1) of the Criminal Procedure Act

With regard to the violation of the Mental Health Act as stated in Article 20 of the Criminal Act, the Defendants and the defense counsel asserts that the Defendants’ act constitutes a justifiable act under Article 20 of the Criminal Act, and thus, the Defendants’ act constitutes a mistake under Article 16 of the Criminal Act, and thus, the liability is dismissed.

However, the "act which does not violate the social rules" under Article 20 of the Criminal Act refers to the act which can be accepted in light of the overall spirit of legal order or the social ethics or social norms, which is located behind it. Whether certain act is justified as a legitimate act that does not violate social rules, should be judged individually by considering the concrete circumstances. Thus, in order to recognize such legitimate act, 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 infringed interests; (iv) urgency; and (v) supplementary nature of the act that does not have any other means or method (see, e.g., Supreme Court Decision 2008Do699, Oct. 23, 2008). The records of this case do not make it impossible for the Defendants to be hospitalized by diagnosis and diagnosis at the time; and (iii) the Defendants' act that did not meet the above requirements for the diagnosis and treatment of their own mind and mind of the law, and thus, it cannot be viewed as justifiable.

Judges Lee Do-min