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Reduction of Punishment for the Mentally ImpairedIs There Middle ground Between Controversy and Justice?
Sohn Yun-seo & Lee Seong-chae  |  sys1130@hanyang.ac.kr & seongchaelee@hanyang.ac.kr
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[340호] 승인 2018.12.03  
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Horror struck Korean society on October 18 in Gangseogu when 29-year-old Kim Seong-soo violently and repeatedly stabbed a part-time worker at an internet café, eventually leading to his death. Shocked at the familiar, yet seemingly “safe” location in which the brutal crime took place and also sympathy for the senseless death of a young man overtook the nation’s newspapers and the Internet. Public sentiment soon turned into a surge of anger as news broke out that Kim Seong-soo’s family had turned in papers proving that he was suffering from depression and had been using medication to treat it. Regulation regarding the reduction of punishment for the mentally impaired has created great controversy in Korea and was rekindled by this incident.

Past criminals have been given overly reduced sentences and were considered, by the public, inappropriate to receive such sentences due to impaired judgment. The potential recurrence of such hideous crimes led the public to respond with more than 1,000,000 signatures on Cheong Wa Dae’s online petition system. As the most popular petition on the website, it currently demands the law to be reinforced. Amidst the controversy, debate has escalated to a point where abolishment of the rule is being avidly supported. While the Ministry of Justice promised to revise the law and to consider the public’s voice seriously, Korea as a whole must take on the responsibility of finding and actualizing new justice. Can there be middle ground that satisfies the wishes of the people while also being just and respectful of the existing law?

Background and Execution of the Law
Article 10 of South Korea’s Criminal Law states, “the act of a person who, because of reduced mental capacity, is unable to make distinctions of objects or control their own will shall not be punished.” It also states: “For the conduct of a person who, because of a mental disorder, is deficient in the abilities mentioned in the preceding paragraph, the punishment shall be mitigated.” This law is referred to as ‘Shimshin-miyak’ in Korean, where ‘Shimshin’ refers to the body and mind, and ‘miyak’ refers to being unwell. The ‘Shimshin-miyak’ law declares that these mentally deficient people must receive reduced punishment.

“In Article 10 lies one of the main principles; the principle of responsibility, this states that those with no cognition. In other words, those who cannot take mental responsibility for a crime cannot be punished. Criminal law holds the view that human nature is good and that if there was a choice to choose from right and wrong, a person could and would choose to do the right thing. If those with absolutely no control over their own will are excluded from judgment or punishment and those with control are not, the mentally-impaired can be considered as those in the middle who receive punishment but a weaker version,” explained Soung Jea-hyen, a researcher at the Korean Institute of Criminology.

Although Korean criminal law shows a clear connection between responsibility and crime, Article 10 does not define in detail what “unwellness” in the body and mind means, and relies only on the theoretical and judicial precedents. In general, the court does not only consider endogenous mental illnesses, such as schizophrenia and bipolar disorder as factors, but also conscious disabilities such as dementia or a hypnotic state. Alcohol, drug addiction, and impulse control disorder have also been recognized as causes of impaired judgment.

“Although an individual might suffer from a mental disorder, it is crucial that there is evidence of its manifestation during the crime,” Soung added. When looking at this law, it does lack clarity in some important areas. However, there are definitely some conditions, which must be fulfilled. Many cases have not passed under the conditions such as the ‘Incheon Elementary Murder’ and as speculations predicted, Kim Seong-soo will not receive mercy either. Drunk driving and misappropriation of the law are subject to heavier punishment; while sexual violence towards minors committed under the influence of alcohol and drugs are excluded from the rule.

The Question of Maintenance or Abolition
1. Maintenance

Those who stand on the side of maintaining Article 10 of the Criminal Law Act primarily emphasize the immutability of the Principle of Responsibility Act and say that the mentally ill should not be objected to imprisonment but rather treatment. As mentioned above, commutation of penalty for the mentally impaired resides in the criminal law’s main principle. Researcher Soung asserts that the law should be maintained as it is undoubtedly justified by the current legislation system. “The Principle of Responsibility is the foundation of Korea’s criminal law and can never be discounted. Article 10 is simply an embodiment of the law, executing justice for those who should not be severely criticized when considering their mental and physical state.” Even with controversial cases in current Korean society, Article 10 is just and fair in the eyes of law.

Secondly, offenders who commit crimes due to a mental disorder, addiction, or other psychosexual disorder should receive treatment as defined by the Act of Medical Treatment and Custody. Not only is it fair to provide proper protection for effective rehabilitation, but it also protects the society by lowering the possibilities of a second conviction. Psychiatrist Park Jin-seng also advocates Article 10 and the medical treatment of such criminals. “Many patients are greatly affected by abusive childhoods and social factors. We must not view them with bias, but rather should work to prevent the repetition of such crimes with continuous treatment. If we neglect these individuals, even more damage will come to society.” Unfortunately, the Institute of Forensic Psychiatry for the Ministry of Justice is the only national hospital in Korea that focuses on the medical treatment of felons. As prosecutors oversee the request of such treatments, the act does not significantly carry out its role.

2. Abolition
Those who lean towards the abolition of Article 10 point out the obscurity of the definition and apprehension of abuse of the law. “Because of how easily mitigated sentences are given, along with inaccurate standards are the reasons behind the rage that can be seen coming from the general public. Especially when it comes to alcohol, many ask whether the society should really consider inebriation as a state where one unwillingly lacks judgment and control,” explains Professor Ha Tae-hoon from Korea University’s School of Law. The ‘Cho Doo-soon Case’ particularly spiked controversy as Cho received an extremely reduced punishment in comparison to the unspeakable sexual violence he committed towards a minor. Although perceived to have had severely impaired judgment by the court, he managed to deliberately wash away his DNA from the crime scene. Cases like this make people blame loose definitions of the law, leading courts to make incomprehensible decisions. This connects to the public apprehension of the misuse or abuse of the law. Researcher Soung stated, “Worries regarding the misuse of Article 10 are completely understandable as even the court has difficulty in making a clarification. One of the biggest problems is that trials usually take place months after the crime, making it difficult for the suspect to give concrete information.”

Several psychiatrists and mental health specialists gave their opinions about the distinction between reduced mental capacity and mental illness. Psychiatrist Park, while he supports the law, agreed by saying: “The boundaries are definitely broad in defining the mental conditions that become factors of mental impairment. This is especially true for schizophrenia and bipolar disorders, where an auditory hallucination possibly leads to murder.” Similarly, the ‘Gangnam Station Murder’ where the attacker was deemed as a schizophrenic patient, raised great controversy to whether he has committed the murder due to his mental condition.

3. Change Over Anything
Although opinions from both sides are reasonable, with a distinct group of people who firmly support the abolition of Article 10, most agree that the law itself is justifiable and what needs to change are the definitions and processes. Soung stated that changing the current legal laws in which “giving life imprisonment is banned and all penalties start off by being reduced to one half of the normal standard”, is a good place to start. Also, to ensure safety and to protect the mentally impaired, Park emphasized the importance of “developing the Institute of Forensic Psychiatry in the Ministry of Justice with a larger workforce and better treatment plans.” He also believes that putting mental health doctors inside regular prisons will have a significant effect.

How Korea and Other Countries Are Dealing with Mental and Physical Impairments
In Korea, a suspect, after being prosecuted for committing a crime, can assert his or her capacity deficit to make a justifiable decision or can file a doctor’s note that the suspect has those symptoms. Then, under the Detention for Verification Article, Article 172, Section 1 through 8, the court can command the suspect’s claim to be authenticated within a certain amount of time in the Institute of Forensic Psychiatry for the Ministry of Justice or in a hospital, when it finds it necessary to verify a suspect’s physical and mental status.

At the Institute of Forensic Psychiatry for the Ministry of Justice, doctors and experts discern the degree of mental infirmity. The process takes between two weeks to a month. Dependency exists, because there is no specific notification or distinction of what constitutes as ‘a mentally impaired, mentally ill, or developmentally challenged’. “Theories and precedents are the determinants of those terminologies’ definition. Psychiatry has nothing to do with it, and it rather belongs to the field of criminal law.” said Kim Ji-min, a psychiatrist of The Seoul Municipal Chukryeong Mental Clinic.

The United States’ criminal law also acknowledges a mentally impaired state called ‘the insanity defense’, also known as ‘the mental disorder defense’. In Section 16 of the criminal code, it is stated: “(1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.” The decision, which is similar to the one in Korea, is based on evaluations by forensic mental health professionals with several tests, following the jurisdiction’s guideline.

Three key issues are attributed to insanity. First, availability, which decides whether the jurisdiction allows a defendant to raise the insanity defense. Second, definition, regarding when the defense is available, and what facts will happen to lead to a finding of insanity. Last of all, burden of proof, which deals with whether the defendant has the duty of proving insanity or the prosecutor has the duty of disproving insanity, and by which standard of proof.

The German law also mentions the conditions where insanity applies. According to Section 20 of StGB (Strafgesetzbuch, German Criminal Code), it says: “Whoever commits the act because of a mental disorder, a profound disturbance of consciousness, dementia, or other serious mental abnormalities, which makes them unable to see the injustice of the act or behave on this insight [are not guilty as a normal person].” A notable point in the German criminal law is that these legal consequences are also applicable to young people from age of 14, if JGG (Jugendgerichtsgesetz, German Youth Court Law) Section 14 is affirmed. There were no elemental differences among different countries’ laws, but the processes were quite distinguishable. Plus, according to Oh Won-chan, a judge of Changwon District Court, Korea’s post-crime criminal action prevention is relatively weak, in comparison to other countries. In Anglo-American laws, if a criminal neglects or disregards psychiatric cure, the delayed sentence shall be enforced through a ‘so-called probation.’ A similar procedure exists in European laws, called conditional judgment. In Korea, similar laws are in the early phases, thus not much has been done so far. “We are expecting the well-accumulated overseas cases to be introduced to Korea soon,” said Oh.

In Which Direction Should the Law Head?
According to a survey done by The Hanyang Journal, 94.2% of the respondents answered that the current Korean criminal law system’s method of dealing with the mentally impaired are insufficient and unjust. Plus, 78.4% of the total answers pointed out that the law should be abolished. Their assertions were that: ‘Apprehension towards the misuse of the law (32%)’, ‘Because unfair sentences can be given (31.5%)’, ‘Should not accept the concept of mental impairment (26.7%)’, and so on.

However, according to experts in different fields, an old cliché ‘haste makes waste’ should be applied here. Oh Wonchan said: “I empathize with the public urge. However, as a judge working within the law, I cannot agree with the opinion that the sentence to insanity should be diminished.” He further explained the Schuldprinzip concept, directly translated as the ‘fault principle.’

According to the judge, schizophrenic patients are subject to protection and cure. Thus, society, as an organization following the nulla poena sine culpa (no penalty without guilt) principle, should not just imprison the mentally impaired and separate them from the rest of the society.

In this case, Kim Ji-min sides with Oh Won-chan. Kim, the psychiatrist emphasized that society should not regard mental illness (a medical term) and insanity (a legal term) as the same. Therefore, if there exists an illness directly related to insanity, strong attention to find the cause and effect is heavily called for. To those who cannot make rational and just decisions but have committed a crime, it is necessary not only to punish the person, but also to cure them. “If not, ultimately getting a cure will be much more difficult. Then, the symptoms will worsen, and then those sufferers will easily be exposed to crimes. It is a detrimental vicious circle that must be stopped,” Kim said.

A debatable Issue, Which Needs to Be Carefully Dealt with
As shown in the petition posted on Cheong Wa Dae’s online petition site on October 17, public opinion asks for the perpetrator’s punishment to be strengthened. The potentiality of recidivism is one of the reasons why public opinion is filled with dismay. People fear that they could be the mentally impaired criminal’s next victim. They also call for the revision of Article 10, as it has the capacity to be misused by the defendants in the name of depression, psychological illnesses, and mentally impaired states.

Although their calls do have justification, there also exist concerns and anguish surrounding Article 10 of the Criminal Law. Some ardently feel uneasiness at the law being edited effortlessly or impulsively.

Psychologist Kim Ji-min voiced that he feels hesitant to eliminate the insanity evaluation system. His assertion was that if those procedures are denied, then the aforementioned vicious cycle would never stop. He emphasized, “Commutation due to mental infirmity should stay as it is, because the purpose of it is to hold social security from potential danger, not to detach people with mental discrepancies and to abuse the law to lessen the sentence.”

Likewise, Judge Oh Won-chan also stated that most mentally-impaired criminals do not commit felonies all at once. He said, “Small faults are accumulated as time goes on, then those actions are finalized into a felony. Therefore, to prevent recidivism, we should establish sentencing guideline  by regarding the mentally impaired and should elaborate the treatment order and its supervising techniques.”

To date, there have been a number of social discourse and debate over the appropriateness of the Criminal Law’s Article 10. However, hesitant decisionmaking could rebound negatively. It is time to reach a public consensus about the justifiability of this controversial law. It is time for the government, especially the legislative and the judicial branches, to find a better way to improve society into a place where social justice is expressed unreservedly and even-handedly.

   
 
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