정신질환자의 강제입원에 대한 사법적 심사 ― 프랑스 법제를 중심으로 ―

Former Mental Health Act in 1995 had been criticized for many reasons, but the main drawback to it was the compulsory hospitalization of a mental patient with his two guardian’s consents and one medical psychiatrist’s affirmation. So for a long while, many scholars and the mass media argued the revision of Mental Health Act concerned on the process in the compulsory hospitalization due to its abuse. In company with the Constitutional decision, former Mental Health Act was amended wholly in 2016, so Act on the Improvement of Mental Health and the Support for Welfare Services for Mental Patients(AIMHS) was enforced 30 May 2017. AIMHS tightened up the conditions of the compulsory hospitalization and established Committee for Examination as to Legitimacy of Admission, but there are some blind spots as ever. At this moment, the comparative law review of the French health policy on the forced medical treatment of mentally-ill will be of use to this discussion. The characteristics of the French legislations are that the patient’s human right is put first, which means the French policy on the mentally-ill patients is focused on the social coexistence, not the isolation or the cure. To protect the patients’ human rights, JLD(Judge of freedoms and detention) is to decide the legitimacy and suitability of the process of the compulsory treatment. In case of the compulsory hospitalization, the JLD should judge, in advance, the legitimacy of the hospitalization. Such legal institution’s policy implications are summarized in mutual control of the agents in the system, diversity on the treatment method, and the various relief organization including the judicial authority, etc. Now, there are aroused the controversy about the judges’ decision in advance to the compulsory hospitalization. Then this article argues that the introduction of preliminary judicial review of the compulsory hospitalization in accordance with the principle of Article 12 of the Constitution Law and Article 947-2 of the Civil Act and the fact that the independent judging body should judge the necessity of compulsory hospitalization from the normative perspective.