In a case where Defendant C, the head of the headquarters of the hospital A, who was the head of the headquarters of the hospital B, was indicted on charges of violating the Mental Health Act, etc. by committing a violation of the Mental Health Act, in collusion with Defendant C, who was a medical specialist within the hospital, in collusion with Defendant C, who was a medical specialist within the hospital, in return for providing money and valuables to the victims who were accommodated in the hospital B for profit, and provided transportation convenience, the case affirming the Defendants guilty.

In a case where Defendant C, the chief of the department of the department of the hospital A, who is the head of the department of the department of the department of the hospital B, (the head of the department of the department of the hospital, (the head of the department of the department of the department of the department of the department of the department of the department of the department of the department of the department of the department of the department of the department of the mental health; (b) was indicted on charges of violating the Mental Health Act, in collusion with Defendant C (the medical specialist of the department of the department of the department of the department of the department of the department of the department of the department of the department of the department of the department of the department of the department of the department of the department of the department of the department of the department of the department of the department of the department of the department of the hospital B; and (c) Defendant C (the medical specialist of the department of the department of the department of the department of the department of the department of the department of the mental health;

Articles 10 and 12(1) of the Constitution of the Republic of Korea; Articles 20 and 30 of the Criminal Act; Articles 23, 24, 25, 26, and 40(1) of the Mental Health Act; Articles 55 subparag. 5 and 58 of the Mental Health Act (Amended by Act No. 1310, Jan. 28, 2015); Articles 27(3), 88, and 91 of the Medical Service Act; Articles 312 and 314 of the Criminal Procedure Act

Defendant 1 and two others

Defendants

Kim Sung-sung et al.

Law Firm L&C case, Attorney Lee Sang-hoon

Changwon District Court Decision 2013No318 decided July 10, 2014

All appeals by the Defendants are dismissed.

1. Summary of grounds for appeal;

A. Error of mistake

① Defendant 2 did not intend to promise the offer of money and valuables to the elderly Nonindicted 1 and Nonindicted 2 as stated in the facts constituting a crime at the time of the original adjudication, and induce them to a medical institution by providing transportation convenience.

② Although it is not clear whether the Defendants were mentally ill persons under the Mental Health Act, the Defendants first considered the need for internal treatment and was hospitalized in the closed mental ward protection room with the consent of Nonindicted Party 1 and Nonindicted Party 2. In addition, Defendant 2 did not take part in the hospitalization of Nonindicted Party 1 and Nonindicted Party 2 in the closed mental ward protection room.

③ In the original adjudication on Defendant 2 and Defendant 1, since the facts constituting the crime constitute all of the innocence, Defendant 3 ought to be acquitted.

B. Legal principles

① Since the Defendants obtained the consent of Nonindicted 1 and Nonindicted 2, the Defendants deemed that there was no problem even if they were to be hospitalized in the closed mental ward protection room, and there was a justifiable reason for legal mistake. Furthermore, the Defendants’ act constitutes a justifiable act under Article 20 of the Criminal Act, and thus, the illegality is dismissed.

② Nonindicted 1 and Nonindicted 2’s statement may not be deemed as having made a statement in “ particularly reliable circumstances” as to the requirements of Article 314 of the Criminal Procedure Act, and its admissibility is inadmissible.

C. Unreasonable sentencing

The punishment sentenced by the court below to the defendants (Defendant 1: 2 million won, Defendant 2: 10 months of imprisonment, 2 years of probation, 120 hours of community service order, Defendant 3: 5 million won of fine) is too unreasonable.

2. Determination

(a) Legislative purport of the Mental Health Act and procedures for hospitalization of mentally ill persons;

The purpose of the Mental Health Act is to contribute to the improvement of the mental health of citizens by preventing mental illness and prescribing necessary matters concerning the medical treatment and rehabilitation of mentally ill persons (Article 1 of the Mental Health Act), and the most important purpose of the Mental Health Act is to provide treatment and appropriate treatment to mentally ill persons. In addition, the Mental Health Act provides for the right to optimum treatment and protection for all mentally ill persons in light of the social security legal ideology of treatment and protection for mentally ill persons with limited mental capacity, other than human dignity and prohibition of discrimination, the right to special education, the right to self-refence and free exchange of opinions with other persons in hospitalized treatment (Article 2 of the Mental Health Act).

In addition to a person’s hospitalization (Article 23 of the Mental Health Act), the Mental Health Act recognizes non-voluntary hospitalization [Article 24 of the Mental Health Act), hospitalization by the head of a Si/Gun/Gu (Article 25 of the Mental Health Act), and emergency hospitalization (Article 26 of the Mental Health Act), takes into account not only his/her treatment and rehabilitation, and also social defense aspects, as well as appropriate treatment. In cases of non-voluntary hospitalization, it may result in infringement of an individual’s personal freedom, as a result of a case of being hospitalized into a mental medical institution, etc. against or against the will of a person suspected of being a mentally ill person.

All citizens have the right to pursue happiness and dignity as human beings (Article 10 of the Constitution of the Republic of Korea). Accordingly, Article 12(1) of the Constitution declares that all citizens shall enjoy physical freedom and that no person shall be punished, protected, or forced labor without following Acts and subordinate statutes. As seen above, inasmuch as non-voluntary hospitalization is contrary to a person suspected of having mental illness or is in a mental medical institution regardless of the person himself/herself, the basic purport of Article 12(1) of the Constitution is reasonable to apply mutatis mutandis to non-voluntary hospitalization. Accordingly, it is reasonable to deem that the Act and due process following the Mental Health Act cannot be hospitalized into a mental medical institution, and that a person who violates this provision shall not be exempt from civil and criminal liability.

In order to prevent reckless abuse of hospitalization of a mentally ill person, the Mental Health Act provides for strict requirements and procedures for hospitalization. In principle, voluntary hospitalization of a mentally ill person is recommended, and even in the case of voluntary hospitalization, the mentally ill person shall be clearly confirmed by having the application for hospitalization. In the case of hospitalization by a legal guardian, the consent of the legal guardian and the diagnosis of a mental health specialist is required, and the consent of the legal guardian and documents confirming that he/she is the legal guardian are the legal guardian. In the case of hospitalization by the head of a Si/Gun/Gu, the hospitalization by the legal guardian may require the person suspected of being a mentally ill person to be hospitalized at a mental medical institution or a general hospital for a fixed period of not more than two weeks, and the hospitalization of a person suspected of being a mentally ill person may be conducted for a certain period of not more than two weeks if there is a consensus from the medical specialist of two or more mental health specialists who need to continue hospitalization as a result of the examination of hospitalization. In such case, hospitalization by the legal guardian cannot be conducted within the scope of 20 hours from hospitalization by a psychiatrist or within the scope of 7.

B. As to the assertion of mistake of fact

Comprehensively taking account of the following circumstances acknowledged by the evidence duly adopted and examined by the lower court, the fact that Defendant 2 promised Nonindicted 1 and Nonindicted 2 to provide money and valuables to the ○○ Hospital for the purpose of profit-making and led Nonindicted 1 and Nonindicted 2 to provide transportation convenience, and that Defendant 1 and Nonindicted 2 conspired with the aforementioned Nonindicted 1 and Nonindicted 2 to be hospitalized in the ○○○ Hospital’s protection room without a diagnosis by a mental health specialist.

First, Nonindicted 1 made a concrete statement in the investigative agency to the effect that “When a person has come to a general hospital in the middle of the Seoul Station, he would treat alcohol addiction and pay 50,000 won per month to the ○○ Hospital”, Nonindicted 2 made a statement to the effect that “ Nonindicted 1 made it close to the Seoul Station to the effect that “I would provide any other person with a high-quality hospital in the middle of the Seoul Station, and would provide any other person with a high-quality hospital in the middle of the region.” (Evidence record 171,181).”

Second, Nonindicted 3 and guardian Nonindicted 4, the chief of the headquarters of the ○○ Hospital, stated to the effect that they were instructed by Defendant 2, the chief of the headquarters of the ○○ Hospital, in an investigative agency, to move Nonindicted 1 and Nonindicted 2 to the ○○ Hospital in Seoul (Evidence Record 35 pages).

Third, Defendant 1 stated in the investigative agency that “The case where the patient is hospitalized at night with the direction of Defendant 2. In particular, in the case of Nonindicted Party 1 and Nonindicted Party 2, Defendant 2 expressed his opinion that the patient should not go to the closed ward by telephone, and that he also was hospitalized in the closed ward because he would be better to go to the closed ward (Evidence record 82, 143).”

Fourth, at the investigative agency, Non-Indicted 1 stated that “A person who arrived at ○○ Hospital and operated the vehicle at night at night, went to a closed mental hospital according to the guidance of the male, whose resident registration number, name, address, etc. was stated, was informed at all times, and that the male completed the procedure of hospitalization and gave guidance to the hospitalization room in the closed mental hospital (Evidence No. 171 pages),” and Non-Indicted 2 stated to the effect that “A person was sent to the care room adjacent to the nurse room to ask his personal information by going to the closed mental hospital of ○○ Hospital. There was no fact that the written application for hospitalization at the time of hospitalization in the closed mental hospital was written (Evidence No. 182 pages), Non-Indicted 1, and Non-Indicted 2 agreed to be hospitalized in the closed mental hospital. In addition, as alleged by the Defendants, even if Non-Indicted 1 and 2 consented to the hospitalization, the application for hospitalization by Non-Indicted 2 is not clearly confirmed in the case of voluntary hospitalization of the mentally ill person.”

Fifth, in light of the developments leading up to Nonindicted 1 and Nonindicted 2’s entry into the ○○ Hospital, Nonindicted 1 and Nonindicted 2’s situation at the time, etc., it is difficult to view that Nonindicted 1 and Nonindicted 2 were in a situation with a significant risk of undermining themselves and others, or that there was a situation requiring emergency hospitalization because of the urgency of the situation, Nonindicted 1 and Nonindicted 2 cannot be hospitalized under Articles 23 through 25 of the Mental Health Act.

C. As to the misapprehension of legal principle

(1) Since the Defendants obtained the consent of Nonindicted 1 and Nonindicted 2, the Defendants asserted that there was a justifiable reason for legal mistake by deeming that there was no problem even if Nonindicted 1 and Nonindicted 2 were hospitalized in the closed mental ward protection room. Even if Nonindicted 1 and Nonindicted 2 consented to hospitalization in the closed mental ward protection room, as alleged by the Defendants, insofar as Nonindicted 1 and Nonindicted 2 did not submit an application for hospitalization necessary for voluntary hospitalization under the Mental Health Act, the Defendants’ act does not constitute illegality. Furthermore, considering the circumstances leading up to the Defendants’ inducement of Nonindicted 1 and Nonindicted 2, the process of inducement, the Defendants’ career, and the regulations on hospitalization under the Mental Health Act, the Defendants’ act is merely a legal site, and does not constitute legal mistake under Article 16 of the Criminal Act.

(2) "Acts which do not violate social norms" under Article 20 of the Criminal Act refers to acts which can be accepted in light of the overall spirit of legal order or the social ethics or social norms surrounding it. Whether certain acts constitute legitimate acts that do not violate social norms and thus, the illegality of such acts ought to be determined individually by considering the following specific circumstances: (a) legitimacy of the motive or purpose of the act; (b) reasonableness of the means or method of the act; (c) balance between the protected interests and the infringed interests; (iv) balance between the protected interests and the protected interests; and (v) supplementary nature that there is no other means or method than the act (see Supreme Court Decision 2008Do699, Oct. 23, 2008, etc.); (c) it is impossible to deem that a psychiatrist with the mental health specialist belonging to ○○ Hospital was hospitalized by Nonindicted 1 and Nonindicted 2; and (d) the act was not justified by the mental doctor or the specialist for the purpose of hospitalization without the diagnosis of his own own mind and the specialist on duty.

(3) Article 314 of the Criminal Procedure Act provides that, in the case of Article 312 of the Criminal Procedure Act, where a person who needs to make a statement on the trial date is unable to make a statement due to death, illness, foreign residence, unknown whereabouts, or any other similar cause, the protocol may be admitted as evidence, but it is limited to the case where it is proved that the statement was made under particularly reliable circumstances. Here, the term "when it was made under particularly reliable circumstances" refers to the case where there is little room for false entry into the contents of the statement or the preparation of the protocol or the document, and there is no specific and external circumstances that guarantee the credibility or decentralization of the contents of the statement (see Supreme Court Decision 2006Do9294, Jul. 26, 2007, etc.).

Considering the timing and circumstances when Nonindicted 1, Nonindicted 1, and Nonindicted 2 were investigated by an investigation agency regarding the police statement made by Nonindicted 1, and Nonindicted 2 in light of the aforementioned legal principles, there is little room for false entry in the preparation of the contents and the statement made by Nonindicted 1 and Nonindicted 2, and there seems to have been specific and external circumstances to guarantee the credibility or arbitability of the contents of the statement made by Nonindicted 1 and Nonindicted 2. Accordingly, the police statement made by Nonindicted 1 and Nonindicted 2 meet the requirements under Article 314 of the Criminal Procedure Act, and thus admissible as evidence is recognized.

D. As to the assertion of unreasonable sentencing

Defendant 1 is the primary offender, and Defendant 2 has no record of being punished beyond the fine, which is favorable to the Defendants.

However, in full view of the legislative purport of the Mental Health Act to protect the rights and interests of patients and prevent unfair compulsory hospitalization, balance with other similar cases, and all of the sentencing conditions in the instant case, including the ages, character and conduct, environment, motive and circumstance of the instant crime, etc., the sentence imposed by the lower court is too unreasonable, as it is too unreasonable.

3. Conclusion

Therefore, the defendants' appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act since all of the appeals by the defendants are without merit. It is so decided as per Disposition.

Judges Cho Chang-young (Presiding Judge)