The Korean Criminal Code §10 ① provides 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」. Therefore, it`ll not be able to be given criminal punishment if a mentally defective
person is determined to lack the criminal liability. The problem about judging the criminal
liability for the mentally defective person exists in areas where the criminal law intersects
with psychiatry.
Although the supreme court ultimately judges whether the criminal liability by mental
defectiveness exists or not, the judgment of mental defectiveness, which is biological element,
needs psychiatric knowledge and it is no wonder to rely on this. In particular, a change is
required in the procedure and contents of mental examination for a mentally defective person
as implementation of the Civil Participation in Criminal Jury Trial.
It is needed the improvement of procedure to submit more accurate mental examination
and the result of it in order that jurors are able to understand the result of mental
examination and make an decision. This is because jurors consisting of ordinary citizens take
part in trial. For guaranteeing the precise result of mental examination in the criminal justice
procedure, it is necessary to establish the pool of manpower consisting of psychiatrists or
psychologists who have completed the specific educational programs about the criminal
justice and legal psychiatry, and it is desired to carry out the psychiatric test with selecting
appraisers who belong to a pool of manpower.
Furthermore, it is required to draw up and submit the written appraisal of mental
examination which is easy to be known because of considering the nonprofessional of jurors
consisting of ordinary citizens in the Civil Participation in Criminal Jury Trial. In order to gain a fair verdict of the jury about whether mental defectiveness exists or not, it is
recommended the prompt submission of the written appraisal of mental examination, the
presentation of the written appraisal of mental examination summarizing the important
contents, and making out the written appraisal of mental examination for jurors to
understand it easily.