한국과 중국의 미성년자・정신장애 범죄자 형사책임능력 판단 및 정신질환 범죄자 처우 법정책 (Comparative Study on the Criminal Responsibility : Law & Policy on the Minor & Mental Disordered Offender in China and South Korea)

서지정보

· 발행기관 : 한국비교형사법학회
· 수록지 정보 : 비교형사법연구 / 18권 / 4호 / 463 ~ 484페이지
· 저자명 : 김한균

초록

This essay studies on the matters of criminal responsibility both in Korean and Chinese criminal laws, especially law and policies on criminal minors and offender with mental disorder.
According to the article 9 of Korean Criminal Act, the act of a person under fourteen years of age shall not be punished. Article 10 says that the act of a person who, because of mental disorder, is unable to make discriminations or to control one's will, shall not be punished. For the conduct of a person who, because of mental disorder, is deficient in the abilities mentioned in the preceding paragraph, the punishment shall be mitigated. Punishment shall be mitigated for the act of deaf-mutes, according to article 11.
Under the Korean Medical Treatment and Custody Act, person subject to medical treatment and custody means a person who requires medical treatment at a medical treatment and detention center and is likely to recommit crime: A mentally handicapped person who is not punishable under Article 10 (1) of the Criminal Act or subject to a reduced sentence under Article 10 (2) of the Criminal Act, and has committed an offense entailing imprisonment without prison labor or heavier punishment; A person who has a habit of, or is addicted to drinking, taking, inhaling, smoking, or injecting narcotics, psychotropic drugs, marijuana, alcohol or other substances which are likely to be abused or harmful, and has committed an offense entailing imprisonment without prison labor or heavier punishment; A person who has a psychosexual disorder showing a propensity for sexual activity, such as pedophillia and sexual sadism, and has committed a sexually violent crime entailing imprisonment without prison labor or heavier punishment.
As to medical treatment and custody, Article 16 of the Act says any person sentenced to medical treatment and custody shall be committed to a medical treatment and detention facility and actions shall be taken for the medical treatment of such person.) The period for which a person under medical treatment and custody shall be committed to a medical treatment and detention facility shall not exceed the following applicable periods: Persons falling under Article 2 (1) 1 and 3: 15 years;. Persons falling under Article 2 (1) 2: Two years. If a person under medical treatment and custody after being sentenced to medical treatment and custody for committing a homicide defined in subparagraph 3-2 of Article 2 of the Act on the Probation, Electronic Monitoring, etc. of Specific Criminal Offenders is deemed likely to repeat such crime and require continuous medical treatment, the court may, upon the prosecutor’s request based on the application filed by the head of the medical treatment and detention facility, decide to extend the period referred to in the subparagraphs of paragraph (2) by up to two years for an extension on up to three occasions.
Chinese Criminal Act has provisions of both criminal irresponsibility and limited-responsibility both for minors and offender with mental disorder. As for medical treatment and custody for mental disordered offender, Chinese Criminal Procedure Law does not define any period for treatment and custody. While Korean Act sees risk of reoffending and necessity of treatment as conditions of treatment and custody order, those conditions under the Chinese Act are harm to public and personal safety, and risk of social safety.
One of the lessons from the comparative study on Korean and Chinese law and policies on criminal responsibility is that the age standard of criminal minor may be lowered, but the criminal responsibilities of minor should be differentiated by age groups.

영어초록

This essay studies on the matters of criminal responsibility both in Korean and Chinese criminal laws, especially law and policies on criminal minors and offender with mental disorder.
According to the article 9 of Korean Criminal Act, the act of a person under fourteen years of age shall not be punished. Article 10 says that the act of a person who, because of mental disorder, is unable to make discriminations or to control one's will, shall not be punished. For the conduct of a person who, because of mental disorder, is deficient in the abilities mentioned in the preceding paragraph, the punishment shall be mitigated. Punishment shall be mitigated for the act of deaf-mutes, according to article 11.
Under the Korean Medical Treatment and Custody Act, person subject to medical treatment and custody means a person who requires medical treatment at a medical treatment and detention center and is likely to recommit crime: A mentally handicapped person who is not punishable under Article 10 (1) of the Criminal Act or subject to a reduced sentence under Article 10 (2) of the Criminal Act, and has committed an offense entailing imprisonment without prison labor or heavier punishment; A person who has a habit of, or is addicted to drinking, taking, inhaling, smoking, or injecting narcotics, psychotropic drugs, marijuana, alcohol or other substances which are likely to be abused or harmful, and has committed an offense entailing imprisonment without prison labor or heavier punishment; A person who has a psychosexual disorder showing a propensity for sexual activity, such as pedophillia and sexual sadism, and has committed a sexually violent crime entailing imprisonment without prison labor or heavier punishment.
As to medical treatment and custody, Article 16 of the Act says any person sentenced to medical treatment and custody shall be committed to a medical treatment and detention facility and actions shall be taken for the medical treatment of such person.) The period for which a person under medical treatment and custody shall be committed to a medical treatment and detention facility shall not exceed the following applicable periods: Persons falling under Article 2 (1) 1 and 3: 15 years;. Persons falling under Article 2 (1) 2: Two years. If a person under medical treatment and custody after being sentenced to medical treatment and custody for committing a homicide defined in subparagraph 3-2 of Article 2 of the Act on the Probation, Electronic Monitoring, etc. of Specific Criminal Offenders is deemed likely to repeat such crime and require continuous medical treatment, the court may, upon the prosecutor’s request based on the application filed by the head of the medical treatment and detention facility, decide to extend the period referred to in the subparagraphs of paragraph (2) by up to two years for an extension on up to three occasions.
Chinese Criminal Act has provisions of both criminal irresponsibility and limited-responsibility both for minors and offender with mental disorder. As for medical treatment and custody for mental disordered offender, Chinese Criminal Procedure Law does not define any period for treatment and custody. While Korean Act sees risk of reoffending and necessity of treatment as conditions of treatment and custody order, those conditions under the Chinese Act are harm to public and personal safety, and risk of social safety.
One of the lessons from the comparative study on Korean and Chinese law and policies on criminal responsibility is that the age standard of criminal minor may be lowered, but the criminal responsibilities of minor should be differentiated by age groups.

참고자료

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