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학술연구/단체지원/교육 등 연구자 활동을 지속하도록 DBpia가 지원하고 있어요.
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연구자들이 자신의 연구와 전문성을 널리 알리고, 새로운 협력의 기회를 만들 수 있는 네트워킹 공간이에요.
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Under the Korean Criminal Law, the Article 10 provides that “A person who is caught in insanity is not responsible if he cannot appreciate the things or cannot decide his conduct.” This literal context has been legislated since 1954. I cannot avoid of suspicion that it could give us a capacity to handle criminal responsibility. Mental capacity to decide a conduct is extremely important to identify criminal behaviour. Criminal law should declare his or her wrongdoing would be claimed because he or she has decided the misbehaviour on the meaning of criminal misconduct. The Korean Criminal Law cannot create the clear and concrete version that we could apply it to the cases on insanity defence. The Korean Criminal Law should clarify, modernise and reform the law on criminal insanity. In our system of justice, any person who chooses to break the law (and is caught!) is supposed to be held responsible. But what if someone does not know that what he or she is doing is illegal? Wouldn't it be pointless to punish people who are not capable, for one reason or another, of making informed and rational choices between right and wrong?
If a person has this insanity defence, he must be acquittal on grounds of insanity. He committed a criminal behaviour but he could not be punished; he lacks responsibility, he does not be held in court, he would be into unexpected trouble. In common sense, people can misunderstand that this not-guilty-but-hospitalising means to let the devil walk down the street. Most culture has strong fear on insanity. Since we have adopted modern legal system, we could not blame the severe criminal cases on ground of insanity. It just mental disease. It, however, is really difficult to identify theinsanity. Insanity includes mental disorder, both of pathological mental disease and psychological metal disorder. There are so many types of mental disorder, insane.
Most of countries have tried to provide rational provisions to identify insanity defence. Germany, USA and Japan have regulations and laws on insanity defence. I can find similarity with each other, and dissimilarity as well. For example the Model Penal Law in the USA has very similar provision with the Korean Criminal Law. It provides: “A person is not responsible for criminal conduct of at the time of such conduct as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to confirm his conduct to requirements of law.” So does German Criminal Law. Only Japanese Criminal Law’s Code define criminal responsibility as “A person who is caught in insanity is not responsible.” It is too simplified. On reading of Japanese Criminal Code, I conclude that it contains as much as the other compared provision’s implication. It legislates only prescribing legal approaches: the insanity defence.
I would like to recommend for the Korean Criminal Law a concrete and clear provision of criminal responsibility in line with insanity. Additionally, for the criminal procedure, we need to revise the provision about expert’s statement on insanity. Under the Korean Criminal Procedure Law, the expert’s statement in court is regarded as a mere statement of witness. But I disagree with that. We should recognise that a psychiatrist’s witness in the court would be more respected than any other expert’s advice. Because it constructs core value of procedure; unless his or her comments on validity of being capable for the crime, the procedure will be no longer existed. Especially, insanity defence should be considered if the expert say it would be. There are three possible outcomes after a disposition hearing: the accused can be discharged, either absolutely or with conditions, or he or she can be ordered detained in a hospital. So I could say, the risk of ‘let-the evil-walk’ cannot happen in our legal system. The Probation Act is to be considered the need to protect the public from dangerous persons, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused. If the person is ordered detained in a hospital, the court or Review Board can specify the conditions under which he or she is to be detained, and can authorise the hospital administrators to vary those conditions as appropriate.
It should be noted that the framework for criminal insanity and responsibility is one of key evaluation point for the Rule of law and legal consideration for human dignity.
If a person has this insanity defence, he must be acquittal on grounds of insanity. He committed a criminal behaviour but he could not be punished; he lacks responsibility, he does not be held in court, he would be into unexpected trouble. In common sense, people can misunderstand that this not-guilty-but-hospitalising means to let the devil walk down the street. Most culture has strong fear on insanity. Since we have adopted modern legal system, we could not blame the severe criminal cases on ground of insanity. It just mental disease. It, however, is really difficult to identify theinsanity. Insanity includes mental disorder, both of pathological mental disease and psychological metal disorder. There are so many types of mental disorder, insane.
Most of countries have tried to provide rational provisions to identify insanity defence. Germany, USA and Japan have regulations and laws on insanity defence. I can find similarity with each other, and dissimilarity as well. For example the Model Penal Law in the USA has very similar provision with the Korean Criminal Law. It provides: “A person is not responsible for criminal conduct of at the time of such conduct as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to confirm his conduct to requirements of law.” So does German Criminal Law. Only Japanese Criminal Law’s Code define criminal responsibility as “A person who is caught in insanity is not responsible.” It is too simplified. On reading of Japanese Criminal Code, I conclude that it contains as much as the other compared provision’s implication. It legislates only prescribing legal approaches: the insanity defence.
I would like to recommend for the Korean Criminal Law a concrete and clear provision of criminal responsibility in line with insanity. Additionally, for the criminal procedure, we need to revise the provision about expert’s statement on insanity. Under the Korean Criminal Procedure Law, the expert’s statement in court is regarded as a mere statement of witness. But I disagree with that. We should recognise that a psychiatrist’s witness in the court would be more respected than any other expert’s advice. Because it constructs core value of procedure; unless his or her comments on validity of being capable for the crime, the procedure will be no longer existed. Especially, insanity defence should be considered if the expert say it would be. There are three possible outcomes after a disposition hearing: the accused can be discharged, either absolutely or with conditions, or he or she can be ordered detained in a hospital. So I could say, the risk of ‘let-the evil-walk’ cannot happen in our legal system. The Probation Act is to be considered the need to protect the public from dangerous persons, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused. If the person is ordered detained in a hospital, the court or Review Board can specify the conditions under which he or she is to be detained, and can authorise the hospital administrators to vary those conditions as appropriate.
It should be noted that the framework for criminal insanity and responsibility is one of key evaluation point for the Rule of law and legal consideration for human dignity.
목차
국문요약
제1장 서론
제2장 형법상 책임능력
제3장 각국의 책임능력기준의 이론과 현실
제4장 형법상 책임무능력 판정과 개선가능성
제5장 결론
참고문헌
Abstract
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