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A Study of Contents and Resolutions in the Mental Health Welfare Act

  • Public Land Law Review
  • Abbr : KPLLR
  • 2017, 80(), pp.303-331
  • Publisher : Korean Public Land Law Association
  • Research Area : Social Science > Law

Kim Chang-Hwee 1

1나사렛대학교

Accredited

ABSTRACT

Dignity and happiness of human through possession of the natural rights may be formed within suitable harmony between national stability and order. The power of national order brings the personal rights into the national order, but the individual may carry the personal rights to indicate the roles of the rights. In other words, the natural rights are the personal subjective rights with the objective order as the political unified body of the State, having the mutually supplementing properties. The personal liberty as the natural right along with the psychological liberty is the most fundamental liberty to implement dignity and value of human, the core of the constitutional ideology, and they are the prerequisites to assure all natural rights. Enacted in 1995, the Mental Health Act was amended on May 29th of 2016, 20 years after enactment, to become the “Act on the Improvement of Mental Health and the Support for Welfare Services for Mental Patients” to be enforced from May 30th, 2017. Though the violation of human rights was predicted from the enactment of the Mental Health Act, the Act was enforced with the justification of preventing mental illness and medical and rehabilitation. However, the number of patients hospitalized increased rapidly with the enforcement of the Mental Health Act, and the formal administration of the protective hospitalization system led to long-term hospitalization to eliminate the fundamental purposes of treatment and rehabilitation by being spoiled to quarantine and confinement with the logic of public security. Hence, the paradigm of trouble-shooting approach in mental health has been changed. Although there may be differences, it is generally evaluated that the issues in mental health are desirably resolved with human dignity through recovery along with management of symptoms in the local community for mental patients rather than with quarantine and confinement for treatment. Therefore, the continuous request of amending the Mental Health Act by social organizations and mental patients and their families led to the case of reviewing the unconstitutional act, making the Mental Health Act have constitutional nonconformity. Moreover, under the trial, the Act has been amended entire in May 2016. The newly amended Mental Health Welfare Act had widely different regulations about protective hospitalization, which was a major issue in the preliminary Mental Health Act. The scope of definition of mental patient has been reduced, the scope of welfare service for mental health has been extended, the concept of consented hospitalization has been newly established, and the substantive and procedural requirements of protective hospitalization have been reinforced. Yet, there are still matters to be improved in the Mental Health Welfare Act, and this study has reviewed such points.

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