In the application of Article 8(1)1 of the Social Protection Act, whether a person who filed a petition for a retrial has a mental disorder at the time of committing the crime, but at the time of the judgment, there is a risk of re-offending in the case of a mental disorder (affirmative)

In the application of Article 8 (1) 1 of the Social Protection Act, the mental and physical condition of the requester for a reduction of illness at the time of committing the crime, but at the time of the judgment, in the case of mental and physical disability, even though it is not specified in the provisions of the above Article, it may be subject to medical treatment and custody only when the risk of recidivism is recognized by considering the risk of recidivism in accordance with subparagraph 2 of the same

Article 8 of Social Protection Act

Supreme Court Decision 82Do142 Delivered on June 22, 1982

Applicant for Custody

Applicant for Custody

Attorney Park Jong-chul

Seoul High Court Decision 83No668 delivered on April 27, 1984

The judgment of the court below is reversed, and the appeal by the respondent is dismissed.

The grounds of appeal by the requester for defense and the state appointed defense counsel are also examined.

1. According to Article 8(1)1 and 2 of the Social Protection Act, medical treatment and custody for a mentally handicapped person is classified as a case where a mentally handicapped person commits a crime in the state of mental disorder (Article 1) and a case where a person commits a crime in the state of mental disorder (Article 2(1)1 and 2). In the case of the former, the risk of re-offending is not specified as the requirement and is specified

In light of the fact that medical treatment and custody under the Social Protection Act is a protective disposition against a person who commits a crime and has the risk of repeating a crime and the need for medical treatment is recognized at the time of the judgment (see Articles 1 through 3), it is clear that Article 8 (1) 1 of the above Act does not stipulate the risk of repeating a crime as the requirement in the case of an insane at the time of the crime, unless the risk of repeating a crime is specified as the requirement, it is clear that the risk of repeating a crime is not itself unnecessary, but, in the case of an insane, the risk of repeating a crime is deemed

However, Article 8 (1) 1 of the Social Protection Act is a provision concerning cases where a mentally handicapped person is mentally ill at the time of the crime, and the condition of the mentally ill person at the time of the crime is in distress at the time of the judgment, as well as the case where the person was mentally defective at the time of the crime, but the judgment was subsequently rendered, and the case is merely a mentally ill person at the time of the judgment. It is reasonable that the risk of recidivism exists as a matter of course in the case of the mentally ill person at the time of the judgment, and it is unreasonable to deem that there is a risk of recidivism even if it is merely a mentally ill person at the time of the judgment

Because the judgment on the risk of recidivism in medical treatment and custody is not a judgment on past facts but a predicted judgment on the possibility of committing a crime again in the future, it shall be determined by comprehensively taking into account all the circumstances, such as the degree of mental and physical disorder of the respondent under custody, the nature of the disease causing the mental and physical disorder, and the existence of the intention to prevent the recidivism of the requester under custody, based on the time of the judgment, it cannot be predicted that the risk of recidivism naturally exists without considering the current overall circumstances.

In addition, if Article 8 (1) 1 of the above Act is not defective at the time of crime, so long as it is merely a mental and physical disability at the time of judgment, and it is not necessary to consider the risk of recidivism, it is interpreted that a person of mental and physical disability at the time of crime should prove the risk of recidivism under Article 8 (1) 2 of the above Act even if it becomes worse at the time of crime, and even if it is not mental and physical disability at the time of judgment, it cannot be said that it is too excessive or balanced interpretation.

2. Therefore, Article 8(1)1 of the Social Protection Act provides that Article 8(1)1 of the same Act shall apply first and second, as at the time the judgment was rendered at the time of the crime, where the person was defective at the time of the crime, and second, where the judgment was rendered, it shall be divided into the case of mental or physical disability at the time of the judgment, but there is no proof on the risk of recidivism in the case of the former, but in the case of the latter, it shall be said that the latter may be subject to medical treatment and custody only when it

3. In the instant case, the lower court determined that the applicant for a protective detention constituted the requirements for medical treatment and custody under Article 8(1)1 of the Social Protection Act, and maintained the first instance court judgment at which the applicant for a protective detention is placed under medical treatment and custody without any judgment as to the risk of recidivism, on the grounds that it is recognized that the applicant for a protective detention treatment of the victim Kim-nam’s disease in the state of mental disorder caused by severe religious marological disorder and editing mental disorder, and that he/she died in the process of the victim Kim-Nam-nam’s disease, etc., and that the symptoms of the mental disorder of the applicant for a protective detention is still pending without any judgment as to the risk of recidivism.

However, according to the testimony in the court of original judgment of the court below, the applicant for crypology of the relevant person and the testimony in the crypology of the relevant person are presumed to have committed a crime resulting from acute editing disorder (1) and 2) editing mental disorder (2) and the characteristics of mental disorder, which mainly deals with such crypology of the patient's behavior, attitude, words, and emotional distress, which are not changing, may cause severe harm to the judgment and judgment, and there is no obstacle to social behavior in the aspect that is not related to the crypology. At the time of the crime of this case, the applicant for crypism was committed by causing severe disorder, such as acute editing disorder (decryption), which is presumed to have existed in the state of mental disorder, and the applicant for crypology in the court of first instance and in the court of original judgment, and all of the applicants for crypology in his/her own behavior, which is not a person subject to the above crypism, but not a person subject to his/her own behavior.

In light of the above appraisal contents and the statement of the requester for identification, although it is evident that the requester for identification has a state of mental disorder with acute editing disorder at the time of the crime of this case, it is difficult to view that the state of mental disorder caused by acute editing disorder at the time of the crime of this case has continued until the trial of the court below. It is reasonable to view that the requester for identification as at the time of the judgment of the court below is a person with mental disability with weak ability to discern things or make decisions as a person with mental disorder.

Therefore, although the petitioner for a retrial falls under Article 8 (1) 1 of the Social Protection Act, it is merely a person with mental disability, not a person with mental disability at the time of the judgment of the court below, but a person with mental disability, which can be subject to medical treatment and custody only if the risk of recidivism is proved, and the court below has neglected the judgment of evidence as to the degree of mental disorder and neglected the judgment as to the risk of recidivism, so it shall not be reversed

However, this case is determined by applying Article 396(1) of the Criminal Procedure Act mutatis mutandis, since it is deemed sufficient to judge a party member based on the records of trial and the evidence investigated by the original court and the court of first instance.

4. The grounds for appeal by a person subject to custody are summary to the purport that the first instance disposition is unlawful because the person subject to custody is not currently or physically handicapped at the time of committing the crime. The grounds for appeal by a state appointed defense counsel are reasonable to return to society as soon as possible in consideration of the circumstances, and ultimately, to the purport that the requirements for medical treatment and custody are incomplete.

Therefore, according to the evidence examined by the health team, the first and second trials (in particular, the testimony of the witness of the court below and the statement at the court of the first and second trials of the court of the court of the court of the court of the first and second trials), as stated in the above, the requester for the custody of the defendant was in the state of mental disorder at the time of the crime of this case and the judgment of the court below is sufficiently recognized as a mentally handicapped person in the state of mental disorder at the time of the crime of this case. Therefore, it is not reasonable to discuss the deficiency of the requirements under Article 8

However, in the event that it was defective at the time of the crime, but it was merely a mental patient at the time of the judgment, the person subject to the warrant may be subject to medical treatment and custody only when the risk of recidivism is recognized. The judgment of the court of first instance is subject to medical treatment and custody without making any judgment on the risk of recidivism. Thus, the judgment below erred by misapprehending the legal principles on the risk of recidivism in the medical treatment and custody under Article 8 (1) 1 of the above Act and omitting judgment. However, according to each evidence above, the person subject to the warrant of the warrant of the warrant of the court below is a person with mental disability who currently has the weak ability to discern things or make a decision as a patient with mental illness, and the above mental disease is due to the fact that the person subject to the warrant of the warrant of the warrant of the warrant of the warrant of the warrant of the judgment, and such religious evidence is believed to be a religious experience of the victim, and it is recognized that there is a possibility that the person subject of the warrant of recidivism should be easily recovered due to editing, and it is acknowledged that the risk of recidivism by the above religious experience of the crime of this case.

In the end, the first instance medical treatment and custody disposition is just in its conclusion and is groundless.

5. Therefore, the judgment of the court below is reversed, and the appeal by the petitioner for the retrial is dismissed. It is so decided as per Disposition by the assent of all participating judges.

Justices Lee Lee Sung-soo (Presiding Justice)