형사책임능력의 판단기준에 관한 고찰 - 미국의 정신이상항변을 중심으로 -

The criminal law assumes people know the law and have free will. Their abilities to know and to choose(or, put in psychological terms, their cognitive and volitional capacities) are bedrock premises of criminal responsibility and underlie all philosophical theories of punishment. Thus,criminal law doctrine condones cognitive or volitional failure as an excuse in legal insanity. Depending on the applicable legal test, a person is legally insane and not responsible for a crime if, as a result of mental illness, his cognitive or volitional capacity was seriously impaired when he committed the offense. According to Article 10 in our criminal code, the mentally disordered offender has no ability or diminished ability to appreciate the criminality of his conduct or to control his conduct as a result of mental disorder. However, Article 10 have nothing but the ambiguous expression on the concept of insanity such as no responsibility or limited(diminished)responsibility, besides does not describe definitely the meaning of mental disorder and the guideline of deciding for the criminal responsibility. This may be caused by different categories of mental disorder but also by drunkenness. For the accomplishment of exact and definite psychiatric testimony of mental disorder, the request for judgement of mental state should be adopted by the expert's knowledge and experience. In preparing for the trial (mental health) expert may evaluate the defendant using the forensic psychiatry and their American approaches. Based on a wide variety of information, such as the defendant`s mental health history, his account of the crime, the facts and circumstances surrounding the crime,and psychological and medical testing, judge should decide mental disordered person`s responsibility individually in their normative viewpoints.