국문요약 ·············································································1
❘제1장❘서론(권수진) ························································5
제1절 연구의 목적 ························································································7
제2절 연구의 범위와 방법 ············································································9
1. 연구의 범위 ·····································································································9
2. 연구의 방법 ··································································································10
❘제2장❘정신보건법정과 사법병동의 이론적 기초(신권철) ·· 13
제1절 정신보건법정과 사법병동의 개념과 유형 ·········································15
1. 정신보건법정의 개념과 유형 ·······································································15
가. 정신보건법정의 개념 ·····················································································15
나. 정신보건법정의 유형 ·····················································································16
2. 사법병동의 개념과 유형 ··············································································17
가. 사법병동의 개념 ·····························································································17
나. 사법병동의 역사 ·····························································································18
다. 사법병동의 유형 ·····························································································19
라. 사법병동 내의 법적 관계 ··············································································19
제2절 형사사법과 정신이상 항변(insanity defense) ································20
1. 정신이상 항변(insanity defense)의 역사 ·················································20
가. 형사재판과 정신이상 ·····················································································21
나. 정신이상 항변과 수용시설 ············································································22
2. 주요국의 정신이상 항변 ··············································································23
가. 영국 ·················································································································24
나. 미국 ·················································································································24
다. 캐나다 ·············································································································25
3. 위법행위를 한 정신장애인에 대한 처우 ·····················································26
가. 위법행위를 한 정신장애인에 대한 처우의 공통점 ······································26
나. 정신이상 항변과 정신보건법정의 등장 ························································27
4. 정신이상 항변의 한계 ··················································································28
5. 치료법학(Therapeutic Jurisprudence)의 등장 ·······································29
가. 치료법학의 개념과 기능 ················································································29
나. 치료법학의 확장 ·····························································································30
다. 치료법학과 정신보건법정에 대한 비판 ························································32
❘제3장❘우리나라의 정신장애인에 대한 형사재판과
치료처우(권수진) ···············································33
제1절 형사재판제도 ····················································································35
1. 수사 및 재판 절차 관련 법규 ·····································································35
2. 수사 및 재판 절차에서 정신감정의 기능 ···················································37
3. 정신장애 범죄 및 범죄자 관련 현황 ··························································38
가. 전체 범죄의 발생 추이 ··················································································38
나. 정신장애인 범죄의 발생 추이 ·······································································40
(1) 범죄자 범행시 정신상태 ············································································40
(2) 정신장애인의 범죄 발생 추이 ···································································40
(3) 정신장애인의 죄명별 추이 ········································································42
(4) 정신장애 범죄자의 전과 현황 ···································································44
다. 정신장애와 범죄의 상관관계 ·········································································45
제2절 치료처우 ·························································································46
1. 치료감호제도 ·································································································46
가. 치료감호제도의 발전 ·····················································································46
나. 치료감호의 의의 및 법적성격 ·······································································47
다. 치료감호의 요건 ·····························································································48
(1) 일반적인 요건 ····························································································48
(2) 대상자별 요건 ····························································································49
라. 치료감호 절차 및 관련 법령 ········································································50
(1) 입소절차 ······································································································50
(2) 퇴소절차 ······································································································52
2. 치료감호소의 조직 및 운영 현황 ································································54
가. 치료감호 조직 및 시설 ··················································································54
(1) 치료감호소 직원 현황 ················································································55
(2) 치료감호소 시설 현황 ················································································55
(3) 치료감호소 병동별 수용인원 현황 ···························································56
나. 치료감호소 운영 현황 ····················································································57
(1) 치료감호 대상자별 수용현황 ·····································································57
(2) 치료감호자 병명별 수용현황 ·····································································59
(3) 치료감호자 죄명별 수용현황 ·····································································60
(4) 치료감호자 범죄 횟수별 수용현황 ···························································62
(5) 치료감호자 연령별 수용현황 ·····································································63
(6) 치료감호자 학력별 수용현황 ·····································································64
(7) 치료감호자 직업별 수용현황 ·····································································66
(8) 치료감호소의 정신감정 유치현황 ···························································67
3. 지정법무병원의 설치 및 운영 ·····································································68
가. 지정법무병원의 설치 ·····················································································69
나. 지정법무병원의 운영 현황 ············································································69
(1) 시설 현황 ····································································································69
(2) 조직 및 인력 현황 ·····················································································69
(3) 수용자 현황 ································································································70
제3절 치료감호 시설내 치료처우 ································································72
1. 시설 내 치료처우 개관 ··············································································72
2. 처분별 치료 ··································································································73
가. 제1호 처분 ·····································································································73
나. 제2호 처분 ·····································································································74
다. 제3호 처분 ·····································································································74
제4절 퇴원 후 관리 ····················································································76
1. 보호관찰 ········································································································76
2. 출소 후 정신보건서비스 ··············································································76
3. 무상 외래진료 등 ·························································································77
❘제4장❘주요국의 정신보건법정 및 사법병동(신권철) ····79
제1절 미국의 정신보건법정 ········································································81
1. 정신보건법정의 개관 ····················································································81
2. 정신보건법정의 이해 ····················································································82
가. 정신보건법정의 정의 ·····················································································82
나. 정신보건법정의 설립배경 ··············································································83
다. 정신보건법정의 목적 ·····················································································83
라. 정신보건법정의 참여대상자 ···········································································85
마. 약물법정과의 차이점 ·····················································································85
바. 정신보건법정의 효용성에 대한 연구결과 ·····················································87
(1) 정신보건법정 운영의 측면 ········································································88
(2) 정신보건법정 효용성의 측면 ·····································································89
사. 정신보건법정의 필수요소 ··············································································92
아. 정신보건법정 도입과 운영의 쟁점 ·······························································94
자. 최초의 정신보건법정의 운영 ·········································································95
3. 정신보건법정의 실제 운영 ···········································································96
가. 정신보건법정의 현황 ·····················································································97
나. 브롱스(Bronx) 정신보건법정의 현황 ···························································99
(1) 브롱스 정신보건법정의 기간과 대상자 ····················································99
(2) 정신보건법정의 운영과 이해관계인의 역할 ···········································102
(3) 정신보건법정의 사건절차 흐름도 ···························································104
4. 미국 내 정신보건법정의 문제점 ·······························································106
제2절 영미권계 국가의 정신보건법정 또는 연계프로그램 ························107
1. 개관 ·············································································································107
2. 영국(England and Wales)의 위법행위를 한 정신장애인 규율 ············108
가. 위법행위를 한 정신장애인에 대한 정신보건법 적용 ································108
나. 정신보건법정 시범사업(Pilot Program) ···················································110
(1) 시범사업(Pilot Program)의 제안 ··························································110
(2) 시범사업(Pilot Program)의 시행 ··························································111
(3) 영국 정신보건법정 시범사업(Pilot Program)의 핵심적 요구사항·····111
(4) 시범사업을 한 두 지역의 정신보건법정 모델의 핵심요소 ···················112
(5) 정신보건법정 시범사업(Pilot Program)의 현황 ··································113
(6) 정신보건법정 시범사업(Pilot Program)에 대한 평가 ·························113
3. 캐나다의 정신보건법정 ··············································································114
가. 개관 ···············································································································114
나. 캐나다의 정신보건법정과 다이버전 프로그램 ···········································115
다. 캐나다 정신보건법정 모델의 특징 ·····························································116
4. 호주 정신보건법정과 다이버전 프로그램 ·················································116
가. 개관 ···············································································································116
나. 정신보건 연계 프로그램(mental health liaison program) ·················117
다. 퀸즈랜드 주의 정신보건법정 ······································································118
제3절 대륙법계 국가의 위법행위를 한 정신장애인 처우 ·························119
1. 개관 ·············································································································119
2. 독일 ···········································································································120
가. 위법행위를 한 정신장애인 처우 ·································································120
나. 정신병원 및 금단치료소 감호처분 ·····························································121
(1) 처분의 요건과 절차 ·················································································121
(2) 정신병원 및 금단치료소 감호처분 현황 ················································121
(3) 교도소 및 일반 정신병원 수용현황과의 비교 ·······································123
다. 외래(통원)치료의무와 사법외래환자센터 ····················································124
라. 정신병원 감호처분에 대한 최근의 개정 논의 ···········································125
(1) 몰라트 사건과 법개정 작업 ····································································125
(2) 독일형법상 치료조항의 해석 ··································································126
(3) 정신병원 감호처분 등의 개정안 ·····························································127
3. 일본 ·············································································································128
가. 위험한 정신장애를 이유로 한 수용 ···························································128
나. 조치입원의 현황 ···························································································129
다. 의료관찰법 제정의 배경 ··············································································131
라. 의료관찰법의 내용 ·······················································································131
(1) 대상자 ·······································································································131
(2) 심판절차 ···································································································132
(3) 입원결정의 집행과 입원계속의 심사 ······················································132
(4) 통원(외래치료)결정의 집행과 통원계속의 심사 ·····································133
(5) 지역사회처우계획(정신보건관찰 및 원조) ··············································133
마. 의료관찰법 운영현황과 문제점 ···································································134
(1) 의료관찰법 운영현황 ···············································································134
(2) 문제점 ·······································································································135
제4절 주요국의 사법병동 ··········································································136
1. 미국의 사법병동 ·························································································136
가. 개관 ·············································································································136
나. 캘리포니아 주의 사법병동 ··········································································137
다. 뉴욕 주의 사법병동 ·····················································································138
2. 독일의 사법병동 ·························································································140
가. 사법병동의 유형과 운영 ··············································································140
(1) 사법병동의 유형과 현황 ··········································································140
(2) 사법병동의 운영방식 ···············································································142
나. 사법병동 관련 규율과 실제 ········································································142
(1) 독일행형법의 규정 ···················································································142
(2) 정신병원 감호처분의 집행과 석방 ·························································143
(3) 바덴-뷔르템베르그 주의 정신병원 감호처분 환자의 규율 ···················144
(4) 독일 각 주의 정신질환자법과 위법행위를 한 정신장애인 ···················147
다. 베를린 전문사법정신병원의 현황 ·······························································148
(1) 수용환자와 직원의 현황 ··········································································148
(2) 석방 전후 사회 내 치료제도 ··································································149
3. 일본의 사법병동 ·························································································150
가. 개관 ···············································································································150
나. 일본 기타큐슈(北九州) 의료형무소·····························································151
(1) 시설 및 인력 ····························································································151
(2) 수용대상자 ································································································152
(3) 치료 및 처우 ····························································································152
다. 의료관찰법병동 ····························································································153
(1) 의료관찰법병동 설립의 배경과 시행경과 ··············································153
(2) 의료관찰법병동의 기준 ············································································154
(3) 의료관찰법에 따른 수용자의 처우 ·························································155
(4) 의료관찰법병동 현황 ···············································································156
(5) 지정입원의료기관 및 지정통원의료기관 현황 ·······································157
(6) 의료관찰법에 따른 입원조치 등 ·····························································157
4. 국내외 상황의 시사점 ················································································158
가. 정신보건법정 ································································································158
나. 사법병동 ·······································································································159
❘제5장❘전문가 의견조사(권수진, 신권철) ····················161
제1절 의견조사에 대한 분석 ····································································163
1. 의견조사 개관 ·····························································································163
2. 의견조사 분석 ·····························································································164
가. 정신질환과 범죄와의 연관성 여부 ·····························································164
나. 현재 정신질환 범죄에 대한 구체적 문제점 ···············································165
다. 현행 치료감호제도에 대한 의견 ·································································165
라. 정신보건법정에 대한 의견 ··········································································166
마. 사법병동에 대한 의견 ·················································································168
❘제6장❘정신보건법정 및 사법병동의 발전방안(권수진) · 171
제1절 정신장애인 형사재판제도의 발전방안 ·············································173
1. 정신장애인의 형사재판제도의 한계 ··························································173
가. 관련 규정 ·····································································································173
(1) 현행 규정 ·································································································173
(2) 치료감호법 개정안 ···················································································174
나. 형사재판실무에서의 노력 ············································································175
2. 전문법원의 필요성과 가능성 ·····································································177
가. 전문법원의 도입 필요성 ··············································································177
나. 전문법원의 도입 가능성 ··········································································178
(1) 전문법원의 기본이념 ···············································································178

(2) 전문법원의 장･단점 ·················································································178
(3) 전문법원의 도입형태 ···············································································179
제2절 사법병동의 발전방안 ······································································180
1. 치료기관으로서의 사법병동 ·······································································180
가. 치료감호 관계법령의 정비 ··········································································181
(1) 치료감호법령의 정비 ···············································································181
(2) 세부 운영지침의 정비 ·············································································181
나. 대상별 분리 수용 ·························································································183
다. 치료대상 및 기준의 명확화 ········································································183
라. 정신감정의 기능 확대 ·················································································184
2. 치료감호 기관의 개선 ················································································185
가. 지정법무병원 ································································································185
(1) 지정법무병원의 역할 제고 ······································································185
(2) 권한과 책임의 조정 ·················································································186
나. 인력 및 조직의 정비 ···················································································187
(1) 인력 ···········································································································187
(2) 조직 ···········································································································189
다. 시설의 정비 ··································································································190
(1) 국립법무병원 ····························································································190
(2) 지정법무병원 ····························································································190
3. 치료처우의 변화 ·························································································191
가. 치료 프로그램의 내실화 ··············································································191
나. 외래진료의 활성화 ·······················································································192
다. 지역사회 내 정신보건 서비스 ·····································································193
참고문헌 ···········································································195
Abstract ··········································································203
[부록]

위법행위를 한 정신장애인에게 적합한 형사재판제도로서 주로 영미법계에서 운영하고 있는 정신보건법정과 이들에 대한 치료처우로서의 사법병동의 바람직한 운영방안을 법제도적 관점에서 모색하는 것을 목적으로 한다. 따라서 본 보고서에서는 위법행위를 한 정신장애인에 대한 현행 형사재판절차와 그에 대한 대안으로논의되고 있는 정신보건법정 또는 전담재판부 등에 대하여 검토하여 그 도입 필요성과 가능성에 대하여 연구하는 것을 포함한다. 이에 더하여 본 보고서에서는 위법행위를 한 정신장애인에 대한 치료처우로서 현행 치료감호에 대하여 고찰하여 치료감호기관과 치료처우의 한계 등 치료감호제도의 문제점을 파악하고, 영국, 미국, 독일, 일본등 주요국의 정신장애인에 대한 치료처우 시설인 사법병동에 대하여 검토하여, 우리나라 치료감호시설이 보다 나은 치료처우 시설로서 발전할 수 있는 방안을 모색하고자 한다.