On October 17th, 2018, a petition for stricter penalties for the Internet café murder in Gangseo-gu, Seoul was put up on the Blue House National Petition Board. As of the end of November, more than 1.1 million citizens signed the petition. The reason for this reaction is that the suspect claimed to be a person with mental instability at the time of the crime. Currently, the term mental instability is a hot potato. Therefore, the CBT would like to analyze its effects on the penalties for suspects. –Ed.

  The reason why mental instability caused public outrage.
  Before discussing the issue, people should understand the definition of mental instability. The term mental instability is used for disorders such as illnesses or deficiencies of the mind, and it also includes mental disability, which refers to a developmental or cognitive impairment.
  The application of mental instability can apply to a suspect favorably. A representative case is the Gangnam Station murder. A 36-year-old man named Kim, who was a suspect in the Gangnam Station murder, was sentenced to 30 years in prison. Though the prosecution had demanded life imprisonment, the judge said, “He was a person with mental instability as he suffered from paranoia at the time of the crime.” Therefore, the judge condemned the criminal to a lower sentence than the prosecution demanded.
  It is known that suspects abuse the term mental instability during trials. After committing a crime, a suspect can purposefully become mentally unstable by drinking alcohol and can then receive a lesser sentencing.
  Kim Seong-soo, who is accused of brutally murdering a part-time worker at an internet cafe in Gangseo-gu, Seoul, submitted a medical certificate of depression, which attracted doubts about the possible abuse of the terminology. Hong Jin-su (’14, Dept. of Sociology) said, “I can understand commutation in cases of people who suffer from severe depression or mental disability in their daily life. However, the problem is when suspects assert that mental instability only for commutation of a crime. Even if the brutality of a crime is serious, the court can easily decide that the suspect has mental instability. Therefore, I think many citizens have hostility toward this legal ploy. From now on, the court needs to exhaustively investigate cases related to mental instability.”

  The court didn’t demand life imprisonment because of mental instability.
  The public criticism of mental instability becoming a legal tactic for criminals is growing louder. It is a big issue whether Kim Seong-soo is going to be judged as a suspect with mental instability. Currently, the suspect is not deemed as such.
  Cases related to mental instability have happened in the past as well. Cho Doo-soon was deemed as having mental instability due to alcohol. In 2008, Cho Doo-soon raped and assaulted an eight-year old girl. He caused her severe injuries and was sentenced to 12 years to life in prison. The prosecution said, “Cho Doo-soon drank and committed the crime knowing that it was an abnormal act despite his drunkenness.” The prosecution demanded life imprisonment. However, the Justice Department said, “Cho Doo-soon was a chronic drinker and that he had mental instability because he was drinking before he committed the crime.”
  Suspects of violent crime have claimed accidental crime or mental instability about their crimes for commutation. Suspects who claimed mental instability have ruined   people’s lives, but their punishments were then commuted. Therefore, public outrage grew. This public outrage spread to the Blue House National Petition Board.

  Despite public outrage, why are people commuted?
  The CBT interviewed Professor Lee of a law school to find out the reasons why the Justice Department recognizes certain suspects as people with instability. The professor said, “According to Article 10 of Criminal Law, (1) the Justice Department doesn’t punish acts of the person who can’t measure the things and make decisions because of a mental handicap. (2) the Justice Department reduces sentences of the person such as (1). (3) the Justice Department doesn’t apply the regulation of article (2) about the action of the person who predicts the occurrence of danger and leads to mental handicap.”
  Commutation of people with mental instability is based on Clause 2, Article 10 of Criminal Law. The reason why the Justice Department commutes sentences of people with instability who can’t measure the things and make decisions is that they are less likely to be blamed in comparison with general cases. Thus, the Justice Department commutes the sentence. As a biological component, a mental disorder is a mental illness, a mental weakness, decreased consciousness, psychopathy, or inebriation by drinking. Therefore, there is the possibility that a suspect who exhibits one of those can get commutation.

  Is the legal problem of mental instability only in Korea?
  The professor answered, “In the case of Japanese law, diminished responsibility is not recognized as a reason for commutation. According to a precedent, diminished responsibility in first-degree murder, requiring planning and reflection, can be evidence that the psychological element of the offender is unstable. Therefore, in this case of first-degree murder, it is denied, but in mild second-degree murder or manslaughter, it is recognized. When there is a serious mental or physical disability, each country accepts different reasons for commutation.”
  In the legal system of the European Continent, it is recognized as a reason for commutation. However, when there is a problem of mental instability, it is regulated in accordance with cases. It is regulated as arbitrary commutation in Germany. It is regulated as necessary commutation in Switzerland. Also, it is regulated as a criteria for punishment in Austria.

  There are various opinions on commutation for people with mental instabilities. The professor added, “The punishment for people with mental instabilities may require some commutation. For example, in the case of congenital mental instabilities, individual circumstances will be needed to account for diminished responsibility since the suspect is not likely to be blamed. However, in the case of voluntary mental or physical weakness, the criminal should be punished. According to Article 10, Clause, the regulations for people with mental instabilities are not applicable to them, and they are punished.”
  Recently, crimes related to mental instabilities have occurred. The commutations of suspects with mental instabilities are causing much controversy. There is a high possibility that the criminals who caused serious crimes will abuse laws related to commutations for mental instabilities. Therefore, it is time for a clear standard to be agreed upon by the majority.
  The professor also stated, “It is necessary to revise Clause 2, Article 10 of Criminal Law from a reduction of necessity to arbitrary reduction. Even if the judge admits commutation, he can reduce the punishment according to the circumstances without compulsory detention.” At present, the national petition is asking the legislature, as well as the judiciary, to try to improve the law. A consensus is being formed in related ministries. They need to establish a new standard for people with mental instabilities with a national sentiment. In this process, the opinions of the majority must be considered. It is not merely changing the wording of the provisions of the law, and it should be established in clear guidelines with social cohesion. It is necessary to have legal regulations for people with mental instabilities and objectivity in medical diagnoses.

By Park Jeong-min | jm38@cbnu.ac.kr
By Kim Chae-hyeon | ch38@cbnu.ac.kr
By Jung Jun-hoe | jjh38@cbnu.ac.kr