형법 제10조 제3항에서 “자의로”의 의미 및 심신미약 범죄의 책임과 양형에 관한 소고-정신질환자의 단약 사례를 소재로-

There has been much discussion in Korea about the so-called ‘actio libera in causa’ stipulated in Article 10, Paragraph 3 of the Criminal Act. A typical case related to this in reality is a crime committed under a state of limited responsibility due to a relapse of mental illness caused by discontinuation of psychiatric medication. This is also the background of crimes that can often be found among the cases reported in the media as ‘random crimes.’ This paper examines the practical issues that require review in the process of determining whether a crime committed under a state of limited responsibility caused by a mentally ill person stopping taking medication constitutes is legally established and, if so, the sentencing of the crime. In Article 10, Paragraph 3 of the Criminal Act, “willfully” means ‘with one’s own will’ according to the wording itself, and refers to an act that causes a state of mental disorder. Here, the intent that it goes beyond simply doing something ‘by one’s own will’ and requires it to be his ‘will’ lies in the ‘intention’ of the actor toward causing a state of mental disorder. Accordingly, it is not appropriate to immediately apply Article 10, Paragraph 3 of the Criminal Act to cases where the perpetrator committed the act of causing mental disorder by discontinuation of psychiatric medication without any intention of causing the mental disorder, for example, cases where a mentally ill person commits a crime after taking drugs and has no or little awareness of his or her mental illness, or cases where the motive or circumstances of stopping medications shows the actor’s little will to relapse. Article 10, Paragraph 2 of the Criminal Act and a mitigating factor of 'mental weakness' in sentencing standards shall be applicable only in cases where Article 10, Paragraph 3 of the Criminal Act is not applicable. In cases of crime committed under a state of limited responsibility due to a relapse of mental illness caused by discontinuation of psychiatric medication, it is desirable that the application of Article 10, Paragraph 3 of the Criminal Act and the application and basis of the general mitigation factor of ‘mental weakness (self-responsible)’ or the special mitigation factor of mental weakness (not self-responsible) be clearly stated in the verdict depending on the specific case. In the long term, since the meaning of “responsibility” in the sentencing factors for mental weakness, which are currently categorized into “responsibility” and “non-responsibility,” that is, the “presence or absence” of responsibility, is hard to apply in concrete cases, there is a need to reorganize the wording of the sentencing standards with a different expression to replace it, and rather than a two-sided judgment of the “presence or absence” of one’s own responsibility, it is necessary to seek a way to establish the sentencing standards in a form that can reflect the “extent” of the intent so that the specificity of specific cases, in which the intent to cause a state of mental weakness appears at one point on the spectrum between “presence” and “absence,” can be taken into consideration in sentencing.