시설수용과 탈시설의 법원리― 강제입원제도를 중심으로 ―

In September 2016, the Constitutional Court decided that the compulsory admission provision that grant a right of determination to family in the Mental Health Act were unconstitutional. In the decision, the purpose of compulsory admission are revealed. The decision was based on the fact that the purpose of the compulsory admission which was expressed to be as personal welfare and social security justifies the exercise of the compulsory power of hospitalization and treatment, The Constitutional Court's decision suggests a fundamental right of the inmate which should be applied in all detention facilities. In this article, we analyze the meaning of the decision. This article focuses on the legal system of institutionalization and deinstitutionalization in our past and present situations. As Foucault has already revealed, reason exclude unreason within reason and modern nation have created lunatic asylums to rule out and control the insane, and simultaneously institutionalization was symbolized by double meaning, exclusion with protection. This paper also looks at how lunatic asylums was invented in past history and how it is succeeded by mental health hospitals and social welfare facilities. The purpose of this study is to expose reality. This paper shows the legal system of compulsory placement in modern society. The reality of institutionalization tells why we can not expect to be treated as a personality in a compulsory placement, and therefore we have no choice but to be so-called deinstitutionalization.