2012 Highest 517 Confinement, Inflicting

2012 early 186 Application for remedy order

A

Kim Yong-open (Public prosecution) and knives (public trial)

Law Firm B, Attorney C

D

October 18, 2012

A defendant shall be punished by a fine of five million won. If the defendant does not pay the above fine, the defendant shall be confined in a workhouse for a period calculated by converting 50,000 won into one day.

An application for remedy by an applicant for remedy shall be dismissed.

Criminal facts

1. Injury;

At around June 12, 2011, around 00:10, the Defendant continuously divided the Defendant into a group of 2,000 won in the “F” management office of the first floor carper operated by the Defendant in Yangyang-si, Yangsan-si. The Defendant changed the victim D (here, 50 years of age) who was the wife at the “F” conference management office of the first floor carper.

The Defendant, while taking a bath, breaddd the victim’s breath with her hand, dumped the victim over her bat, and dumpd the victim’s left her bat, and 2 times the victim’s left her bat, followed up two weeks of medical treatment.

2. Illegal confinement;

At around 14:00 on July 1, 201, the Defendant: (a) placed two employees of the emergency rescue team, who were the wife of the above her wife, who had been aware of the mental illness; (b) placed both arms of the victim on the part of the emergency rescue team; (c) forced the victim to board the vehicle of the emergency rescue team; and (d) had the doctor and employees in charge of the above hospital treat the victim at a detention without releasing the victim from the hospital.

However, the Defendant was aware of the fact that the victim was receiving treatment by high blood pressure, physical handicap disorder, etc. from H and Seodaemun-gu Seoul Seocho-gu Hospital, etc. In this regard, the Defendant detained the victim for one hour from July 1, 201 to 15:00 on the same day.

Summary of Evidence

1. Partial statement of the defendant;

1. A witness D and J’s legal statement

1. Second police interrogation protocol against the accused;

1. Statement made to D by the police (including the J’s statement);

1. Application of the Acts and subordinate statutes of a copy of the injury diagnosis certificate (D, K Council members);

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

Article 257(1) of the Criminal Act, Article 276(1) of the Criminal Act, and Article 276(1) of the Criminal Act, selection of each fine.

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 (Concurrent Crimes with Punishment Aggravated Punishment Aggravated Punishment Aggravated Punishment Aggravated Punishment) of the Criminal Act

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Dismissal of application for compensation;

Article 32 (1) of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings (It is not reasonable to issue a compensation order because the scope of liability for compensation is unclear)

Judgment on the argument of the defendant and defense counsel

The Defendant and the defense counsel acknowledged the fact that the victim inflicted bodily injury as stated in the facts constituting the crime in the judgment of the Defendant, but regarding the confinement part on the above facts constituting the crime, the Defendant asserted that he was merely the victim’s intent to receive medical treatment and did not have any criminal intent to commit confinement and denied this part of the facts charged.

According to the records of this case, it is recognized that the police was dispatched to the victim on the ground that the victim was diagnosed by the patrial symptoms accompanied by depression and apprehensions from H, and the victim was tried to commit suicide on or around April 22, 201.

그러나 이 법원이 적법하게 채택하여 조사한 증거에 의하여 인정되는 다음과 같은 사정, 즉 ① 위 H의원에서 발행한 처방전과 관련하여 처방전에 있는 약품에 대해 약사L은 “처방전에서 데파스정, 리제정은 스트레스 등으로 인한 위장기능을 돕기 위한 자율신경 안정제이고, 록소프로펜정은 진통 소염제, 티알부틴정은 위장 운동 개선제, 일양바이오레바미피드정은 위궤양 치료제, 일양바이오염산티로프라미드정은 배가 아플 때 복용하는 진경제, 셀렉틴 캡슐은 항우울제로 일반인보다 과민한 성격일 때 복용하는 약이다. 위 처방전만으로는 환자가 정신병이 있다고 볼 수 없다.”는 의견을 제시하고 있어 (수사기록 119쪽), 위 H의원의 진단만으로는 피해자에게 정신병이 있다고 단정할 수 없는 점, ② 위 H의원에서의 진단은 정신과 전문의에 의한 진단이 아닌 것으로 보이는데, 이 사건 범행 후인 2011. 11. 10. 피해자는 M병원에서 심리검사를 받았는바, 그에 따르면 피해자에게는 신경학적 손상이 없고, 전반적인 모든 기능 영역에서 정상적이라는 진단을 받은 것으로 보이는 점(수사기록 66쪽), ③ 피고인은 당초에는 수사기관에서 피해자가 I 병원에서 정신과 치료를 받았다는 취지로 진술한 바 있었으나(수사기록 44쪽 이하), 실제 피해자는 I 병원에서 고혈압, 고지혈, 당뇨병 등으로 치료받은 사실이 있을 뿐, 정신과 치료를 받은 바는 없는 것으로 보이는 점, ④ 피고인 진술대로 피해자가 2011. 4. 22.경 피고인과 부부싸움을 하고 자살 소동을 벌여 경찰이 출동한 사실이 인정된다 하더라도, 이 사건 범행은 그로부터 2개월 이상 경과한 것이고, 이 사건 범행에 근접한 전후로 피해자에게 정신질환을 의심케 할 만한 특이한 증상이 있었다고 볼 만한 뚜렷한 자료가 없는 점, ⑤ 소위 '강제입원'은 피해자의 의사에 반하여 이루어지는 것으로서, 그 정당성을 인정하기 위하여는 매우 긴급한 상황에서 다른 수단이나 방법에 의한 법익 보호가 곤란한 경우 등 이어야 할 것인데(대법원 2001.2. 23. 선고 2000도4415 판결 등 참조)1) 증인 J의 진술에 의하면 피고인은 피해자가 앓고 있다는 정신질환과 관련하여, 피해자의 친척 등과 서로 의논을 하거나 정신병원에 입원시키는 것에 대하여 아무런 상의를 한 바가 없는 것으로 보이고, 자발적으로 정신과 치료를 받도록 하는 것이 여의치 않을 경우 정신과전문의와 상담하여 정신보건법 제25조가 정한 바에 따라 시·도지사에 의한 입원절차를 취하는 방법 내지 긴급한 경우에는 경찰공무원에게 경찰관직무집행법 제4조 제1항에 기하여 정신병원에의 긴급구호 조치를 취하도록 요청하는 방법이 있음에도 피고인은 이러한 조치를 취한 사실은 전혀 없다고 보이는 점 등을 종합하면 이 부분 공소사실은 충분히 인정된다.

Therefore, the defendant and his defense counsel cannot be accepted.

Without considering other legitimate means or methods of sentencing, considering the developments leading up to the instant confinement against the will of the victim who is the spouse, the punishment shall be determined as ordered by the Disposition, comprehensively taking into account the following: (a) although the Defendant cannot be deemed to have been subject to pharmacologic treatment, it appears that the victim actually appeared to have been under pharmacologic treatment, and the Defendant appears to have reached the instant crime with the motive to treat the victim; (b) it is difficult to view that the degree of confinement is too heavy; (c) the Defendant has no criminal record and criminal records serious to the Defendant; and (d) it appears that the divorce lawsuit is in progress.

Judges Gin-type

1) In relation to “voluntary hospitalization,” see the following relevant laws and regulations:

Mental Health Act

Article 23 (Voluntary Hospitalization) (1) A mentally ill person shall submit an application for hospitalization or admission, and shall be referred to as "mental medical institution, etc."

A person may be voluntarily hospitalized or admitted.

(2) The director of a medical institution for mental illness (in cases of a department of mental health established in a medical institution of at least hospital level, referring to the head of the medical institution;

The head of a mental medical institution or mental health sanatorium (hereinafter referred to as "head of a mental medical institution, etc.") shall file an application for discharge, etc. from a patient hospitalized pursuant to paragraph (1).

(2) In the case of discharge, discharge shall be made without delay.

(3) The director of a mental medical institution, etc. shall have an intention to discharge a mentally ill person hospitalized or admitted pursuant to paragraph (1) at least once a year.

The father shall be identified and recorded in the medical records and shall be confirmed by the patient himself/herself.

Article 24 (Hospitalization by Person Responsible for Protection) (1) The director of a mental medical institution, etc. shall give consent of two persons responsible for protection to mentally ill persons (in case where there is one person responsible for protection).

The hospitalization of the relevant mentally ill person is limited to the case where a psychiatrist deems it necessary to be hospitalized with the consent of one person) and a psychiatrist.

In case of hospitalization, etc., the person responsible for protection is the person responsible for consent to hospitalization, etc. and the person responsible for protection prescribed by Ordinance of the Ministry of Health

certified documents shall be received.

② 정신건강의학과전문의는 정신질환자가 입원등이 필요하다고 진단한 떄에는 제1항에 따른 입원등의 동의서에 당해 정신질

A recommendation for hospitalization, etc. stating the opinion that the patient is judged to fall under any of the following cases shall be attached:

1. Where a patient suffers from a mental illness in the degree or nature that he/she is hospitalized in a mental medical institution, etc.;

2. Where hospitalization, etc. is necessary for the patient's health or safety or the safety of another person;

(3) The period of hospitalization, etc. under paragraph (1) shall not exceed six months: Provided, That the head of a mental medical institution, etc. shall continue to be hospitalized even after six months have passed.

Where a psychiatrist has a diagnosis that requires a medical fee and a legal guardian has submitted a written consent of hospitalization, etc. under paragraph (1), six months;

Each person shall request the head of a Si/Gun/Gu to review the treatment of hospitalization or admission.

(4) When having received an order for discharge, etc. as a result of the examination under paragraph (3), the director of the mental medical institution, etc. shall discharge the relevant patient immediately.

section 3.

(5) Where the head of a mental medical institution, etc. has hospitalized or extended the period of hospitalization or admission of a mentally ill person pursuant to paragraphs (1) and (3), he/she

A legal guardian who has submitted the principal and written consent (hereafter referred to as "legal guardian" in this Article) shall be responsible for the examination, etc. of discharge, etc. under Article 29 on the grounds therefor.

Matters concerning claims shall be notified in writing or by electronic document.

(6) Where there is an application for discharge from a patient or a legal guardian, the director of the mental medical institution, etc. shall discharge the relevant patient without delay.

Provided, That where a psychiatrist has notified the risk of a mentally ill person, the director of the mental medical institution, etc. shall refuse to discharge the mentally ill person.

In such cases, patients or legal guardians shall immediately be provided with the Basic Mental Health Deliberative Committee or Metropolitan Mental Health Deliberative Committee provided for in Article 27.

Any objection may be raised to the new health deliberation committee (limited to the case where the new health deliberation committee is not established).

(7) Where the director of a mental medical institution, etc. refuses to discharge a patient pursuant to the proviso to paragraph (6), he/she shall promptly cause the refusal.

It shall be notified in writing or by electronic document that a request for examination of discharge, etc. may be filed under Article 29.

(3) When the director of a mental medical institution, etc. has received an order for discharge, etc. as a result of examination under the latter part of paragraph (6), he/she shall immediately

shall be held as such.

(9) When a patient has been discharged pursuant to the main sentence of paragraph (6), the legal guardian shall be notified of such fact in writing or by electronic document.

Article 25 (Hospitalization by Head of a Si/Gun/Gu) (1) Any mental patient who finds a person suspected of having a risk of undermining himself/herself or others due to mental illness

A specialist or mental health specialist may apply to the head of the Si/Gun/Gu for the diagnosis and protection of the relevant person.

(2) Upon receiving an application under paragraph (1), the head of a Si/Gun/Gu shall immediately suspected of the relevant mentally ill person from a psychiatrist.

shall request the diagnosis of the Corporation.

A psychiatrist is likely to harm himself/herself or others with respect to a person suspected as a mentally ill person referred to in paragraph (2), and the symptoms thereof are accurate.

한 진단이 필요하다고 인정한 떄는 시장·군수·구청장은 당해인을 국가나 지방자치단체가 설치 또는 운영하는 정신의료기관

A general hospital or a general hospital may be hospitalized for a fixed period of not more than two weeks.

Criteria for the risk of under paragraph (3) to harm himself/herself/herself or others shall undergo the deliberation of the Central Mental Health Deliberative Committee provided for in Article 28.

shall be determined by the Minister of Health and Welfare.

When the head of a Si/Gun/Gu is hospitalized pursuant to paragraph (3), he/she shall be a legal guardian or a person who is under protection of the mentally ill person concerned.

The period and place of hospitalization shall be notified in writing or by electronic document without delay.

(6) The head of a Si/Gun/Gu shall, as a result of the diagnosis under paragraph (3), have not less than 2 mental patients who need continuous hospitalization.

When there is a consensus from a psychiatrist, a psychiatrist established or operated by the State or a local government with respect to the mentally ill person concerned.

A request for hospitalized treatment may be made to an institution: Provided, That there is no mental medical institution established or operated by the State or a local government under its jurisdiction;

In cases of other mental medical institutions, a request for hospitalized treatment may be made to other mental medical institutions.

(7) and (7) Deleted.

(8) When the head of a Si/Gun/Gu requests hospitalization pursuant to paragraph (6), he/she shall with respect to the relevant mentally ill person, legal guardian, or person under protection.

Matters concerning the reason and period of continuous hospitalization, and requests for examination of discharge, etc. under Article 29, shall be made in writing or by electronic document without delay.

such notice.

Article 26 (Emergency Hospitalization) (1) Those who discover a person presumed to have mental illness and is highly likely to harm himself/herself or others, shall be very urgent.

In a case where it is impossible to hospitalize a person as provided for in Articles 23 through 25 due to confinement, such person shall be in a medical institution for mental illness with consent of a doctor and police officer.

A request for emergency hospitalization of a person may be made.

(2) Where hospitalization is requested under paragraph (1), the police officer consenting thereto or the member of the rescue unit under Article 35 of the Framework Act on Fire Services shall be the member.

the court shall escort the person concerned to the medical institution for mental illness.

(3) With regard to a person whose hospitalization is requested under paragraph (1), the director of the medical institution for mental illness may make an emergency hospitalization within the limit of 72 hours.

(4) The result of the diagnosis by a psychiatrist on the person whose hospitalization is requested under paragraph (3) may cause harm to himself or other persons.

When continuous hospitalization is required, hospitalization shall be made in accordance with the provisions of Articles 23 through 25.

(5) Where continuous hospitalization is not necessary as a result of diagnosis by a psychiatrist under paragraph (4), that is, the director of a mental medical institution.

shall be discharged from the City.

(6) When the head of a mental medical institution makes an emergency hospitalization under paragraph (3), he/she shall have a legal guardian or a person who is under protection of the relevant mentally ill person.

The reason, period and place of hospitalization shall be notified in writing or by electronic document without delay.