Whether a person who is not a legal guardian prescribed by the Mental Health Act is a tort in case where he hospitalizes a mentally ill person with consent as a legal guardian of a mentally ill person (affirmative in principle)

In light of the basic ideology of the Mental Health Act, with respect to a mentally ill person who needs to respect the dignity and value of a mentally ill person as a human being and who needs hospitalized treatment at all times, the provision of hospitalization by a legal guardian under the Mental Health Act only lists the legal guardian who can consent to hospitalization in order to prevent human rights violations of a mentally ill person that may arise during the course of hospitalization, and strictly prescribes the requirements and procedures for hospitalization. Therefore, inasmuch as a person who is not a legal guardian under the Mental Health Act gives consent to hospitalization of a mentally ill person as a legal guardian of a mentally ill person, unless there are special circumstances, such as the requirements and procedures for emergency hospitalization under Article 26(1) of the Mental Health Act are met, it constitutes a tort.

Article 2(1) and (5), Article 21(1) and (3), Article 24(1), Article 26(1), (2), and (3) of the Mental Health Act; Article 750 of the Civil Act

Plaintiff (Law Firm Daeho, Attorneys Shin Dong-chul et al., Counsel for the plaintiff-appellant)

Republic of Korea (Government Law Firm Corporation, Attorneys Choi Jong-chul et al., Counsel for defendant-appellant)

Ansan-si

Seoul Northern District Court Decision 2013Na20647 decided December 6, 2013

All appeals are dismissed. The costs of appeal are assessed against each party.

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

A. (1) Article 2(1) of the Mental Health Act provides that “All mentally ill persons shall be guaranteed dignity and value as human beings,” and Article 2(5) of the same Act provides that “Any mentally ill person who requires hospital treatment shall always be encouraged to voluntarily be hospitalized.”

Article 24(1) of the Mental Health Act provides that “In relation to hospitalization by a legal guardian, the head of a mental medical institution, etc. may have two legal guardians (in cases where there are only one legal guardian, the consent of one legal guardian) and only if he/she judges that hospitalization by a mental health specialist is necessary, etc., he/she may have the relevant mentally ill person hospitalized, and shall obtain written consent to hospitalization, etc. prescribed by Ordinance of the Ministry of Health and Welfare from the legal guardian and documents confirming that he/she is the legal guardian.” Meanwhile, Article 21(1) of the Mental Health Act provides that “In relation to a legal guardian under the Civil Act of a mentally ill person, a legal guardian or legal guardian shall be the legal guardian of a mentally ill person,” and Article 24(3) of the same Act provides that “Where there is no legal guardian under the provisions of paragraph (1) or the legal guardian is unable to perform his/her duty due to any inevitable reason, the head of a Si/Gun/Gu having jurisdiction over the address of the relevant mentally ill person (where there is no address or the legal guardian is unknown.

In addition, Article 26 (1) of the Mental Health Act provides that "Any person who finds a person presumed to have mental illness and who has a high risk to harm himself/herself or other persons, may request an emergency hospitalization of the person concerned to a mental medical institution with the consent of a doctor and a police officer, when the situation is very urgent and it is impossible to hospitalization as provided for in Articles 23 through 25 of the Mental Health Act." Article 26 (2) of the same Act provides that "in case of a request for hospitalization as provided for in paragraph (1), the police officer consenting thereto or the members of a rescue unit as provided for in Article 35 of the Framework Act on Fire Services shall escort the person concerned to a mental medical institution, and Article 26 (3) of the same Act provides that "the head of a mental medical institution may hospitalize the person whose hospitalization is requested pursuant to paragraph (1) within 72 hours."

(2) In light of the basic ideology of the Mental Health Act, with respect to a mentally ill person who needs to respect the dignity and value of a mentally ill person as a human being and who needs to be hospitalized at all times, the provision of hospitalization by a person responsible for protection under the Mental Health Act shall be deemed to have limitedly listed the legal guardian entitled to consent to hospitalization in order to prevent a violation of human rights by a mentally ill person that may arise during the course of hospitalization, and strictly defined the requirements and procedures for hospitalization. Therefore, inasmuch as a person who is not a legal guardian under the Mental Health Act gives consent to hospitalization of a mentally ill person as a legal guardian of a mentally ill person, barring special circumstances such as meeting the requirements and procedures for emergency hospitalization under Article 26(1) of the Mental Health Act, such as where the mentally ill person is highly likely to harm himself/herself

B. According to the reasoning of the judgment below, the Minister of Unification establishes and operates an office to support the settlement of residents escaping from North Korea (hereinafter “one member”) based on Article 10(1) of the North Korean Refugees Protection and Settlement Support Act (hereinafter “North Korean Refugees Act”). North Korean defectors who entered the Republic of Korea have undergone a joint examination at the Central Joint Examination Center organized by relevant agencies, such as the National Intelligence Service, and then are determined as a person eligible for protection pursuant to the North Korean Refugees Act, he/she shall be admitted to one member and transferred to one place of residence after receiving social adaptation education, etc. for about 12 weeks, and the president may confirm the identity and motive of escape from North Korea, conduct medical examination, and take other measures necessary for settlement support while the person eligible for protection is protected at one source.

C. In full view of the adopted evidence, the lower court determined that: (a) although the president, etc. does not fall under the legal guardian under the Mental Health Act; (b) requested the hospitalization of the Plaintiff to the White Hospital and consented to the hospitalization of the Plaintiff by himself/herself as the legal guardian constituted an act violating the procedure of the Mental Health Act to have the Plaintiff hospitalized against his/her will.

Then, the court below rejected the Defendant’s legitimate act and the Defendant’s assertion of necessity on the ground that the Plaintiff’s consent to hospitalization as the legal guardian did not constitute a justifiable act because it violates the Mental Health Act, and it does not constitute a justifiable act, and on the other hand, it does not constitute an imminent danger to the extent that the Plaintiff’s psychological or behavioral disorder at the time of hospitalization would cause harm to other students. In the event that emergency hospitalization is required under the Mental Health Act, it is possible to take the measure of hospitalization only for the period during which the emergency hospitalization is permitted, and it does not constitute an inevitable case

Furthermore, the court below acknowledged the facts as stated in its reasoning after comprehensively taking account of the evidence adopted. ① The North Korean defector Act cannot be the basis for imposing a compulsory disposition against his will against the North Korean defector who is a person subject to protection; ② the legal procedures provided for in the Mental Health Act must be strictly observed; ② In the absence of a legal guardian under the Civil Act against a mentally ill person or his/her legal guardian is unable to perform his/her duty due to unavoidable reasons; and ② in the absence of his/her address or unknown whereabouts, the head of a Si/Gun/Gu having jurisdiction over the present location of the mentally ill person is obvious and there is no room for any other interpretation; ③ the circumstance that the plaintiff is not established a family relation register and has not registered as a resident cannot serve as a reasonable ground for excluding the application of the Mental Health Act to the plaintiff; ④ one president was the precedent that the North Korean defecter who has already been protected on June 8, 2006 was subject to non-voluntary treatment with his/her consent to hospitalization in the market where he/she had been subject to protection under the Mental Health Act. ⑤

D. Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, the above judgment of the court below is justifiable. Contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles as to the legal guardian under the Mental Health Act, the meaning of negligence under Article 2 of the State Compensation Act, by misapprehending the legal principles as to political party acts or emergency evacuation, or by exceeding

2. Plaintiff’s ground of appeal

The amount of consolation money for emotional distress suffered by a tort may be determined at the discretion of the fact-finding court, taking into account various circumstances (see Supreme Court Decision 2012Da60466, Aug. 20, 2014, etc.).

In light of the reasoning of the judgment below in light of the above legal principles, the court below did not err by misapprehending the legal principles as to the calculation of consolation money or by failing to exhaust all necessary deliberations, as otherwise alleged in the ground of appeal.

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against each losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok (Presiding Justice)