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A Study on the Custody System for Criminals with Mental Disorders and its Improvement Measure

  • Legal Theory & Practice Review
  • Abbr : LTPR
  • 2016, 4(2), pp.103-128
  • Publisher : The Korea Society for Legal Theory and Practice Inc.
  • Research Area : Social Science > Law

장승일 1

1전남대학교

Candidate

ABSTRACT

In the past, the Security Measures System of the Social Protection Act was abused as a menas to excessively restrict the freedom of the people. However, according to the principle of liability of act in criminal law, the usefulness of the treatment and custody system, which provides quality medical treatment to those who cannot be imposed with punitive action and promotes the security of society by means of social rehabilitation and by preventing recidivism is undeniable. The Medical Treatment and Custody Act has been considerably amended in regards to the controversial regulations, procedures, and treatment in terms of management, as stipulated in the Social Protection Act. In particular, limiting the long term confinement period of treatment and custody facilities to the 15 years may be positively assessed as having resolved the problem of indeterminate sentences. Foreign countries prioritize social stability and do not define a limitation to the confinement period. However, considering the principle of proportion, the treatment period should be individualized according to the gravity of the crime of each mentally disabled person. A recent amendment that introduced a treatment order system for minor offences by the mentally disabled is a positive development. The previously discussed treatment order conditional to indictment by the prosecutor is not valid considering the expansion of the discretionary power of the prosecutor and the overlap of the subsequent judicial process when the treatment order is not fulfilled. If treatment and custody emphasizes the character of security measure rather than individual treatment, it ultimately is not different from punishment, and furthermore and may lead to the double stigma of both criminal and mentally disabled. In consideration of such aspects, the Treatment and Custody System must be developed as an effective measure that aids the social rehabilitation of mentally disabled criminals through treatment and improvement along with the purpose of actually protecting society. To achieve this, the accurate state of mentally disabled criminals as well as the mentally disabled must be investigated, and a new framework for an innovative transition of mental health services must be recreated, along with policy alternatives to improve the human rights of the mentally disabled. Most of the mentally disabled may not achieve complete recovery through medication but they are capable of living a normal life. Therefore, we need to take considerable interest and consideration to the mentally disabled by changing the perception of regarding the mentally disabled as potential criminals.

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