2015Gohap15.156 Dried residential buildings and attempted fire preventions

2015 or 6 (Joint Medical Treatment and Custody)

Applicant for Medical Treatment and Custody

○ ○

Kim* (prosecution, public trial), this* (Public trial) * (Public trial)

Attorney Barn* (Korean National Assembly)

December 22, 2015

A defendant shall be punished by imprisonment for not less than one year and six months.

Provided, That the execution of the above sentence shall be suspended for three years from the date this judgment became final.

To order the accused to be put on probation and to take lectures for alcohol treatment for 40 hours.

One diveter (No. 1) seized shall be confiscated.

The medical treatment and custody claim of this case is dismissed.

Criminal facts

The defendant is the defendant living in Songpa-gu** Street** A, etc. used as a residence ** A, etc. living in the Gosiwon 310.

On June 23, 2015, the Defendant: around 40, around June 23, 2015, in a state of weak ability to discern things or make decisions due to alcohol inducement mental disorders: around 40, 200 a number of cases using a one-time dog in possession on the ground that he/she appears to have returned to the Defendant, and put him/her on two copies of a number of cases using a dynasium attached thereto, and tried to extinguish the above dynasium by attaching a fire to the dynas on the dynas, but the Defendant did not come into an attempted crime due to a witness A’s detention.

Summary of Evidence

1. Defendant's legal statement;

1. Statement made to A by the police;

1. B written statements;

1. A protocol of seizure (voluntary submission) and a list of seizure;

1. Investigation report (related to the reporting person of the 112 Incident), on-site photographs;

Application of Statutes

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

Articles 174 and 164(1) of the Criminal Act

1. Mitigation of mental disorders;

Articles 10(2) and 55(1)3 of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act (The following extenuating Conditions among the Reasons for Sentencing)

1. Orders for probation and education;

Article 62-2 (1) and (2) (main sentence) of the Criminal Act, Article 59 of the Act on Probation, etc.

1. Confiscation;

1. Scope of applicable sentences by law: Imprisonment with prison labor for a year and six months to fifteen years;

2. The sentencing criteria shall not apply to an attempted crime; and

3. Determination of sentence: The crime of this case, one year and six years of suspended execution of one year and six months, committed by the Defendant, by attaching fire, etc. to the entire building within the notified party building, was attempted by the Defendant. The notified party building that the Defendant attempted to cause fire, which is a building in which many people live, is highly likely to cause serious harm to human life or serious property damage. In light of these circumstances, the Defendant’s liability for the crime is not somewhat weak.

However, the Defendant committed the instant crime under the lack of the ability to discern things or make decisions due to a mental disorder leading to alcohol inducement disorder; the fact that the instant crime was committed with multiple attempts to commit the instant crime; and that there was no special loss of human life or property damage; and that A does not want the punishment of the Defendant under the agreement with A who is the resident and operator of the published institute where the instant case occurred, shall be considered as favorable to the Defendant.

Other circumstances, such as the defendant's age, character and conduct, family relationship, environment, circumstances before and after the crime, etc., and the conditions of sentencing as shown in the trial process, shall be determined as ordered in consideration of the overall circumstances.

Judgment on a claim for medical treatment and custody

1. An applicant for a medical treatment and custody application for a medical treatment and custody application is a mentally handicapped person who has weak ability to discern things or make decisions due to alcohol inducement mental disorders, and has committed a crime corresponding to imprisonment without prison labor or heavier punishment by setting fire to the same residential building as stated in the facts constituting an offense in the judgment, and requires medical treatment at the medical treatment and custody facility, and is in danger of recidivism.

2. Determination

A. The risk of repeating a crime, which is a requirement for medical treatment and custody, means a case where there is a probable probability that the requester subject to medical treatment and custody will block the crime again in the future in the state of mental and physical disorder, and the existence of such danger shall be objectively determined by comprehensively assessing all the circumstances, including the content of the crime in question and the degree of mental and physical disorder of the requester subject to medical treatment at the time of sentencing, the nature and degree of difficulty of treatment, whether the patient subject to medical treatment and custody has an environment to be continuously treated in the future, and whether the requester subject to medical treatment and custody has the intent to prevent recidivism (see Supreme Court Decision 2010Do26, Jan. 27, 201, etc.)

B. According to the above evidence, it is recognized that the applicant for medical treatment and custody committed the instant crime under the conditions that the applicant for medical treatment and custody has a weak ability to discern things or make decisions due to a alcohol inducement mental disorder, and that the patient is "the patient suffering from an uncontrold alcohol control ability," and "the symptoms of the gold group" needs to be treated in the future.

C. However, in light of the following circumstances recognized by the above evidence, it is difficult to readily conclude that the evidence submitted by a prosecutor alone is sufficient to deem that there is a considerable probability for an applicant for a medical treatment and custody to block a crime again due to a mental disorder in the future due to drinking, and that the applicant for a medical treatment and custody need to receive medical treatment at the “risk of recidivism” and “medical treatment and custody facility” under Article 2(1)

① From October 13, 2014 to January 13, 2015 before the instant case, a candidate for medical treatment and custody has been under medical treatment and custody treatment with his family’s help due to hospitalization at each hospital (i.e., during the period from March 3, 2015 to June 13, 2015) *** A person subject to medical treatment and custody has been under medical treatment and custody with his family’s help. Furthermore, the applicant for medical treatment and custody from December 9, 2015, which was released by the ruling on bail after the instant crime, to December 9, 2015, * A person subject to hospital’s mental health department is under hospital treatment and treatment, and the situation is significantly improved than at the time of the instant crime.

② Although an applicant for medical treatment and custody suffers from a mental disorder with alcohol inducement, if appropriate medical treatment and medication are performed without alcohol consumption, there seems to have been no special symptoms or alleviated due to the disease.

③ If a person subject to medical treatment and custody continues to verify whether a person subject to medical treatment and custody undergoes medical treatment and custody along with outpatients after discharge, it is highly likely to maintain a favorable condition. Probation and alcohol treatment can not be given to the person subject to medical treatment and custody through probation and alcohol treatment, etc., and to some extent it can be seen that the person subject to medical treatment and custody could not receive treatment at the medical treatment and custody center. ④ The person subject to medical treatment and custody has expressed his/her intent to reflect his/her mistake while undergoing medical treatment outside the medical treatment and custody center and refrain from drinking, and the family member of the person subject to medical treatment and custody also expressed his/her intention to receive appropriate medical treatment for the person subject to medical treatment and custody. Accordingly, even if the person subject to medical treatment and custody receives medical treatment at the medical treatment and custody center, it is possible to receive medical treatment by himself/herself or through family support.

(5) According to the notice of the result of a mental appraisal of a candidate for medical treatment and custody, the candidate for medical treatment and custody seems to have no special circumstance for a mental condition test, such as the applicant for medical treatment and custody is clear of consciousness, preservation of remaining ability, and absence of special circumstances in the course and contents of the accident

(6) There is no specific criminal history other than the traffic-related criminal records before the candidate for medical treatment and custody commits the instant crime. From around 2005 to around 2012, the cargo transportation services were provided and the number of drinking alcohol was increased while performing daily work thereafter, there was only a fact that he/she was subject to a disposition of fine of KRW 2 million by the Seoul Northern District Court on October 8, 2008 as a violation of the Road Traffic Act (drinking) and there was no record of having been a crime committed thereafter.

3. Conclusion

Therefore, the claim for medical treatment and custody of this case is dismissed in accordance with the latter part of Article 12(1) of the Medical Treatment and Custody Act.

Jurors's verdict

1. A verdict of guilt, innocence, etc.;

(a) He/she is guilty or not guilty;

○ "guilty": Seven persons (one full-time)

(b) Medical treatment and custody application;

○ Dismissal of a request for medical treatment and custody: Seven persons (one full-time).

2. Opinions on sentencing;

○ 1 year and 3 years of suspended sentence of six months: Seven persons (one full-time officer);

Judges Kim Young-hoon

Judges Jink-in

Judges Lee Jin-jin