As mental patients receive special treatments in the medical field, they need to be treated specially in many aspects in the legal field. Field. For a long time, such a special legal treatment has been known as "Forensic Psychiatry" in abvanced
countries. Unfortunately, Korean doctors and judicial officials are not familiar even with the term Forensic Psychiatry. This deplorablesituation has led me to write this article to draw the interest in the Forensic psychiatry area and to
facilitate the
cooperation between medical and judicial fields.
At first, we must recognize the problems of different terminology Since the law involves quite different terminology from that of the medicine, the comprehension and adoption of such legal terms to the medicine field should be done carefully. I
will
provide the definition for some terminology in this paper.
In Korean judicial procedures, the problems in mental disability law practice are summarized as follows:
2) Expert Witness Cost
The expert witness cost is kind of a procedural cost to be borne by defendant under the Rule of Korean Criminal Procedure. In practice, however, the government pays for the cost. Thus, it would be better to revise the article of the Criminal
Procedure
governing the expert witness cost to shift the cost burden from the defendant to the government. If not, we must follow the rule completely.
Another problem is, then how to pay for this cost. The budget for the Korean court system is under the control of the Supreme Court Administration. Thus short-budgeted lower courts sometimes cannot afford to provide expert opinion opportunities
to
defendants with an alleged mental disability. To insure the fairness and jusitice, every lower court should be able to budget for the expert witness cost.
2) Forensic Psychiatry Institution
The psychiatric examination of a defendant requires a special detention facility, However, there had been virtually to reliable mental hospital for this special purpose. Fortunately this problem can be solved easily after the government
established
the
Forensic Psychiatry Institution. Practicing lawyers in Korean should recognize the need for this special detention facility for the psychiatric examination.
3) Expert Opinion Evidence
For Korean judges and prosecutors, accepting expert opinions as fact is a rule, rather an exception. That dose not mean the courts accept the expert opinions blindfold. The courts use and do need to use demeanor evidence to determine the
reliability of
the evidence. However.
when there is a conflict between an independant psychiatric examination report presented by the defendant and a court-requested psychiatric examination perpor, deference to expert opinions is needed to prevent the subjective determination of the
court.
4) Civil Procedure and Psychiatric Examination
In Korea, examination for a lawsuit rarely indludes a psychiatric examination. Even practicing attorneys consider the medical examination is an exclusive term for a physical examination rather than the psychiatric one. The advanced legal culture
requires to recognize the importance of the psychiatric examination as one of the medical examinations.
5) Preference for the Mentally Weak Decision
Under the Korean Criminal Code, mentally weak defendants can be sentenced to jail, while mentally disabled defendants are considered unable to commit a crime. This has made the courts prefer to find a devendant mentally weak instead of mentally
disabled
despite a "mentally disabled" finding, when a heinous crime is in trial. This tendency of the courts should be changed because when a defendant is found mentally disabled, he still has to serve his time in different form for is confined to a
psychiatric
detention center under the Social Protection Law of 1980.
To remedy all these problems and to ascertain the reasonable treatment for the mentally disabled defendants, the cooperation between the medical and judicial fields is essential. I hope this small article would contribute to protect the fights of
the
mentally disabled defendants who are disadvantaged by the public's ignorance.
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