Whether a crime of violating Article 24(1) of the former Mental Health Act due to a violation of the duty to receive documents, etc. necessary for hospitalization of a mentally ill person constitutes a crime of omission (affirmative)

Article 24(1) of the former Mental Health Act (wholly amended by Act No. 14224, May 29, 2016; hereinafter “former Mental Health Act”) provides that “The head of a mental medical institution, etc. may, only where two legal guardians of mentally ill persons consent (where there are only one legal guardian, the consent of one legal guardian) and a mental health specialist determines that hospitalization or admission (hereinafter “hospitalization, etc.”) is necessary, hospitalization, etc. of the relevant mentally ill person; and Article 57 subparag. 2 of the same Act provides that “The head of a mental medical institution, etc. shall obtain written consent of hospitalization, etc. prescribed by Ordinance of the Ministry of Health and Welfare and documents confirming that the legal guardian is the legal guardian, in violation of Article 24(1) of the same Act.” In light of the form and purport of the provision, a person who fails to obtain written consent of hospitalization or documents confirming that the legal guardian is the legal guardian is the legal guardian, and thus, constitutes a crime of omission by omission.

Even though the joint principal offender of the crime of violating the former Mental Health Act due to the above duty of acceptance, which is a crime of omission, is jointly liable to several persons, all of them may be established when they conspired to perform the duty. According to the above provision, the duty of acceptance of documents, etc. to confirm the legal guardian is granted only to the “head of a mental medical institution, etc.” The duty of receipt of documents, etc. is granted not only to the director of a mental medical institution, etc. but also to the director of a mental health medical specialist, who has served in the same place, does not bear the duty

Article 24(1) of the former Mental Health Act (wholly amended by Act No. 14224, May 29, 2016) (see current Article 43(1) of the Act on the Improvement of Mental Health and the Support for Welfare Services for Mental Patients), Article 57 Subparag. 2 (see current Article 86 Subparag. 3 of the Act on the Improvement of Mental Health and the Support for Welfare Services for Mental Patients), Article 30 of the Criminal Act

Defendant 1 and two others

Prosecutor

Law Firm (LLC) LLC, Attorneys Gangnam-hwan et al., Counsel for the plaintiff-appellant

Suwon District Court Decision 2018No333 decided July 26, 2018

All appeals are dismissed.

The grounds of appeal are examined.

1. Summary and key issues of the facts charged

The charge against the Defendants is a violation of the former Mental Health Act (wholly amended by Act No. 14224, May 29, 2016; hereinafter “former Mental Health Act”). The summary of the charge is as follows: (a) a mental health specialist belonging to the ○○○ Hospital, a mental medical institution, is a mental health specialist; (b) a person in collusion with the director of a hospital or a person with a non-indicted, or (c) a person with a legal guardian, who was hospitalized by the legal guardian, was hospitalized without having documents verifying that the person is the legal guardian of the relevant mentally ill person when hospitalized by the legal guardian.

The key issue is whether the Defendants can be deemed to have committed a crime in collusion with the head of a hospital in relation to the part of the selective charges as above, and whether the Defendants can be punished as joint penal provisions under the former Mental Health Act in relation to the part.

2. Whether the Defendants can be deemed to have violated the former Mental Health Act in collusion with the head of the hospital and the Nonindicted Party

A. Article 24(1) of the former Mental Health Act provides that “The director of a mental medical institution, etc. may, only where there is two legal guardians (in cases where there are only one legal guardian, the consent of one legal guardian) and a mental health specialist judges that hospitalization or admission (hereinafter “hospitalization, etc.”) is necessary, hospitalization of the relevant mentally ill person, etc., and obtain written consent to hospitalization, etc., and documents confirming that the legal guardian is the legal guardian, as prescribed by Ordinance of the Ministry of Health and Welfare, shall be obtained when hospitalized.” Article 57 Subparag. 2 of the same Act provides that “A person who fails to obtain written consent to hospitalization or documents verifying that the legal guardian is the legal guardian in violation of Article 24(1) shall be punished. In light of the form and purport of the provision, a violation of the former Mental Health Act due to a violation of the legal guardian’s duty to receive documents, etc. constitutes a crime of omission by omission that can only be realized by omission.

The co-principal of the crime of violating the former Mental Health Act due to the violation of the duty to receive the petition, which is a crime of omission, is jointly imposed upon several persons, but all of them did not perform the duty. According to the above provision, the duty to receive documents, etc. verified by the legal guardian is granted only to the “head of a mental medical institution, etc.” In addition, the duty to receive documents, etc. verified by the legal guardian is granted not only to the “head of a mental medical institution, etc.” and the department of mental health who works in the same place is not the director of a mental medical institution

B. The lower court upheld the first instance judgment that acquitted the Defendant as follows. Article 24(1) of the former Mental Health Act provides that the person liable to receive documents verifying that the person is the legal guardian when hospitalized by the legal guardian is the head of a mental medical institution, etc. In the case of hospitalization by the legal guardian, the said person is the legal guardian. The Defendants, who are merely a medical specialist belonging to the instant hospital, cannot be deemed as not the said legal guardian but in collusion with the head of the hospital.

According to the above legal principle, the Defendants, a medical specialist of mental health in the instant hospital, do not belong to the legal guardian’s duty to receive documents, etc., and thus, cannot be said to be jointly granted the Defendants with the duty to receive documents, etc. verifying the legal guardian. Therefore, the Defendants cannot be deemed joint principal offenders of the crime of violating the former Mental Health Act due to the violation of the duty to receive documents, etc.

In the lower judgment, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on co-principals committed in violation of Article 57 Subparag. 2

3. Whether the Defendants can be punished as joint penal provisions under the former Mental Health Act

The lower court upheld the first instance judgment that acquitted the Defendant on the part of the selective charges as follows. In full view of the content of Article 24 of the former Mental Health Act, the hospitalization process by the legal guardian conducted at the instant hospital, and the actual business practices of mental medical institutions, etc., the Defendants, as a medical specialist of the department of mental health of the instant hospital, play a medical examination on the necessity of hospitalization with respect to the mentally ill person, and do not constitute a person who is in charge of receiving documents by which it can be confirmed as the legal guardian.

Examining the reasoning of the lower judgment in light of relevant legal principles, the lower judgment did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on joint penal provisions under Article 58

4. Conclusion

The prosecutor's appeal is dismissed in its entirety as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Dong-won (Presiding Justice)