[1] Where the director of a medical institution for mental illness has hospitalized a person presumed to be a mentally ill person, he/she infringed on the physical freedom of the person presumed to be the above mentally ill person, where the legal guardian obtained the consent of the legal guardian only after the elapse of 19 days after emergency hospitalization although the consent of the legal guardian could continue to be hospitalized before the elapse

[2] Where the director of a medical institution for mental illness hospitalized a mentally ill person with the consent of the legal guardian, the case holding that the above procedure was violated upon the physical freedom of the mentally ill person, where the above procedure had been completed six months after the date of initial hospitalization by calculating six months from the date of the first hospitalization in spite of the fact that the need for continuous hospitalization was determined before six months have elapsed since the first hospitalization, and where the need is recognized, the examination of continuous hospitalization treatment was requested with consent of the legal guardian

[3] The case holding that the right of the above mentally ill person was infringed upon, in case where the director of the mental medical institution did not give proper notice of the procedure such as a request for examination of discharge to the mentally ill person who clearly expresses his wish to discharge several times from hospitalization, and the procedure taken to escape from hospitalization against his will

[4] Requirements to recognize the State's liability for damages due to the violation of public official's duty and the standard of determining proximate causal relation

[5] The case holding that there is a proximate causal relationship between the public official's breach of duty and the damages to the mentally ill person, on the ground that the head of mental health facilities caused or contributed to tort that infringes on the mental patient's physical freedom and procedural rights due to the public official's failure to perform the duty of guidance and supervision on the installation and operation

[1] The case holding that in case where the director of a mental medical institution received the consent of the legal guardian 19 days after the emergency hospitalization even though the legal guardian could continue hospitalization before the expiration of 72 hours before the person presumed to be a mentally ill person, it infringed the above person's physical freedom.

[2] Where the director of a medical institution for mental illness hospitalized a mentally ill person with the consent of the legal guardian, the case holding that the above procedure was violated upon the physical freedom of the mentally ill person, where the procedure was followed 6 months after the date of initial hospitalization by calculating 6 months based on the date of all days other than the date of initial hospitalization, although the need was determined before 6 months have passed since the date of initial hospitalization, and where it was recognized as necessary after obtaining consent from the legal guardian

[3] The case holding that the director of the medical institution for mental illness infringed the above mental patient's right to take the procedure prepared to escape from hospitalization against his/her own will by not giving proper notice of the procedure such as a request for examination of discharge to the mentally ill person who clearly expresses his/her wish to discharge several times from hospitalization

[4] If the contents of official duties imposed on a public official are not merely for the public interest or for the purpose of regulating the internal order of an administrative agency, but entirely or incidentally established to protect the safety and interest of an individual member of society, the State shall be liable to compensate for the damage suffered by the victim due to the public official’s breach of such official duties to the extent that proximate causal relation is acknowledged. In determining the existence of proximate causal relation, not only the probability of the occurrence of a general result, but also the purpose of Acts and subordinate statutes and other rules of conduct imposing official duties, or the form of

[5] The case holding that there is a proximate causal relationship between the public official's breach of duty and the damages to the mentally ill person, on the ground that the head of mental health facilities caused or contributed to tort that infringes on the mental patient's physical freedom and procedural rights due to the public official's failure to perform the duty of guidance and supervision on the installation and operation of mental

[1] Articles 750 and 751 of the Civil Act, Articles 24 and 26 of the Mental Health Act / [2] Article 750 of the Civil Act, Article 24 of the Mental Health Act / [3] Articles 750 and 751 of the Civil Act, Articles 29 and 30 of the Mental Health Act, Article 17 of the Enforcement Rule of the Mental Health Act / [4] Article 2 of the State Compensation Act, Article 750 of the Civil Act / [5] Article 2 of the State Compensation Act, Article 750 of the Civil Act, Article 39 of the Mental Health Act, Article 21 of the Enforcement Rule of the Mental Health Act

[4] Supreme Court Decision 91Da43466 delivered on February 12, 1993 (Gong1993Sang, 958) Supreme Court Decision 98Da2631 delivered on September 22, 1998 (Gong1998Ha, 2545) Supreme Court Decision 2001Da59842 delivered on April 25, 2003 (2003Sang, 1245)

Plaintiff (Attorney Lee Young-chul, Counsel for the plaintiff-appellant)

Korea

Busan District Court Decision 2004Da32493 Delivered on December 15, 2004

January 13, 2006

1. Of the judgment of the court of first instance, the part against the plaintiff falling under the following amount shall be revoked. The defendant shall pay to the plaintiff 5 million won with 5% interest per annum from March 30, 2004 to February 10, 2006, and 20% interest per annum from the next day to the date of full payment.

2. The plaintiff's remaining appeal is dismissed.

3. Of the total litigation costs, 80% is borne by the Plaintiff, and the remainder 20% is borne by the Defendant, respectively.

4. The part ordering a payment of money under paragraph (1) may be provisionally executed.

The judgment of the first instance is revoked, and the defendant shall pay to the plaintiff 39,064,00 won with 20% interest per annum from the day after the delivery of a copy of the complaint to the day of complete payment.

1. Basic facts

This Court’s reasoning concerning this part is as stated in Paragraph 1, from 2, 1, to 4, 1,000, except for the deletion of Paragraph 1, from 3, 13, to 15, 3,00 in the judgment of the first instance. Thus, this Court’s reasoning is as follows.

2. The parties' assertion and judgment

A. The plaintiff's assertion

The plaintiff, the first hospital or the second hospital, was in violation of the procedure of obtaining consent from the legal guardian for the hospitalization of the plaintiff and the procedure of claiming examination of continuous hospitalization. The plaintiff did not inform the plaintiff of the procedure for requesting examination of discharge and infringed on the right to state opinion. The defendant's public official who is the guidance and supervisor for each hospital was also in violation of the duty of guidance and supervision, and the defendant's official who neglected the duty of guidance and supervision caused the above hospital's illegal act. Thus, the defendant asserts that the defendant is liable for compensation for the loss suffered by the plaintiff

(b) Markets:

(1) Whether the principal of the first hospital and the second hospital committed an unlawful act

(A) Provisions of the law

Basic ideology of the Mental Health Act is to guarantee dignity and value of all mentally ill persons as human beings, the right to receive optimum treatment, and the right not to receive unfair discrimination shall be guaranteed to mentally ill persons who need hospital treatment at all times. With respect to mentally ill persons who are hospitalized, voluntary hospitalization shall be guaranteed as much as possible, and shall be guaranteed to freely exchange opinions with other persons (Article 2 of the Mental Health Act). A police officer who finds a person presumed to have mental illness and who has a high risk to harm himself/herself or others may request emergency hospitalization to a mental medical institution with consent of a doctor (Article 26(1) of the same Act). Such emergency hospitalization shall be permitted only within 72 hours (Article 26(3) of the Mental Health Act). When continuous hospitalization is necessary as a result of the diagnosis by a psychiatrist, the head of the mental medical institution shall request the Do governor to freely refer the value of hospitalization at the time of hospitalization (Article 23 of the same Act) or by a person responsible for protection (Article 24 of the same Act, and the period of hospitalization shall be reported to the 6 months after the request for examination and treatment by a psychiatrist).

(b) the sales board;

As to this case, comprehensively taking account of the overall purport of oral argument No. 10, No. 4-4, No. 5-14, No. 19-23, and No. 10-10, the head of the first hospital: (a) obtained consent of the head of the Busan Si/Gun/Gu who is the legal guardian on December 11, 200, much more than 72 hours after the first hospitalization of the Plaintiff; and (b) the head of the second hospital, who violated the first procedure for examination of hospitalization, was deemed to have violated the right of hospitalization of the Plaintiff from 20 days to 10 days after the first hospitalization; and (c) the second hospital’s right to request for examination of continuous hospitalization by obtaining consent of the legal guardian and requesting for examination of hospitalization for the first time after the second time after the second time after the second time after the second time after the second time after the second time after the hospitalization, thereby failing to obtain consent of the Plaintiff’s first time after the second time after the second time after the hospitalization of the hospital; and (d) the second hospital’s right to request for examination of hospitalization.

(2) Whether the defendant's State liability is established

If the content of the official duty imposed on a public official is not merely for the public interest or for the purpose of regulating the internal order of an administrative agency, but entirely or incidentally for the protection of the safety and interest of an individual of the members of society, the State shall be liable to compensate for the damage suffered by the victim due to the public official’s breach of such official duty to the extent that the proximate causal relation is acknowledged. In determining the existence of proximate causal relation, not only the probability of the occurrence of the general result, but also the purpose of Acts and subordinate statutes and other behavioral norms imposing official duties, the pattern of the harmful act, the degree of damage, etc. shall be comprehensively taken into account (see Supreme Court Decision 91Da43466, Feb. 12,

As to this case, Article 39 of the Mental Health Act provides that the Minister of Health and Welfare, the Mayor/Do Governor, or the head of a Si/Gun/Gu has the duty to guide and supervise the installation and operator of mental health facilities under the jurisdiction of the Mayor/Do Governor or the head of a Si/Gun/Gu at least once every half year, and shall report the results of guidance and supervision to the Minister of Health and Welfare. Accordingly, considering the legislative purport and purpose of the above Act providing the defendant's duty to guide and supervise the installation and operation of mental health facilities, the defendant's above duty to guide and supervise the person under the jurisdiction of the Mayor/Do Governor or the head of a Si/Gun/Gu is not only for the public interest or the general public, but also for the safety and interest of the specific individual citizen who is expropriated in mental health facilities, and it is difficult to recognize that the defendant violated the duty to guide and supervise the person under the jurisdiction of the Mayor/Do Governor or the head of a Si/Gun/Gu without such duty to guide and supervise the person under the jurisdiction of the Mayor/Do Governor.

(3) The scope of the defendant's liability

(A) Determination on the Plaintiff’s assertion on actual import loss

The plaintiff asserts that since the plaintiff was illegally hospitalized for 618 days from November 22, 200 to August 1, 2002, the defendant is obligated to pay 29,046,000 won to the plaintiff as damages from lost income during the pertinent period. Thus, as seen earlier, as long as the whole period of hospitalization cannot be seen as illegal hospitalization, the part of the plaintiff's claim on lost income during the period of hospitalization exceeding the entire period of hospitalization should not be considered as illegal hospitalization. In light of Eul's 4-4, the plaintiff's assertion on the actual income during the hospitalization period is without merit, and it is insufficient to find that the result of the first instance court's fact-finding on the large-scale corporation of the first instance court was sufficient to find that the plaintiff had a labor ability to continuously obtain certain income from the plaintiff at the time of initial hospitalization, and there is no other evidence to find it otherwise difficult to view that the plaintiff's allegation that the plaintiff's actual income had a continuous ability to obtain labor income during the above period of hospitalization.

(B) Judgment on the Plaintiff’s assertion of consolation money

Next, regarding the assertion on consolation money, it is clear in light of the empirical rule that the plaintiff suffered emotional distress due to the violation of the plaintiff's physical freedom and significant procedural rights due to the violation of the public official's duty to guide and supervise the above, and therefore, the defendant is obligated to pay consolation money in cash. Furthermore, considering the various circumstances shown in the arguments in the instant case, such as health team, the reason and circumstance of the plaintiff's hospitalization, the degree of the above hospital's illegal act, the degree of the defendant's illegal act, and the period of illegal admission, it is reasonable to determine the amount of consolation money as five million won in consideration of various circumstances shown in the arguments in the instant case

3. Conclusion

Therefore, the defendant is obligated to pay damages for delay calculated at the rate of 5% per annum as stipulated in the Civil Act from March 30, 2004 to February 10, 2006, which is the date following the delivery date of a copy of complaint, as requested by the plaintiff, to the plaintiff as compensation for delay, as the defendant is obligated to dispute about the existence and scope of the defendant's obligation to pay damages for delay calculated at the rate of 5% per annum as stipulated in the Civil Act and 20% per annum from the next day to the date of complete payment. Thus, the plaintiff's claim of this case is justified within the above recognition scope, and the remainder is dismissed as it is without merit. Since the part against the plaintiff corresponding to the above recognition amount in the judgment of the first instance is unfair, the plaintiff's appeal is partially accepted, and the defendant is revoked, and the remaining appeal of the plaintiff is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Park Jae-young (Presiding Judge)