On Applicable Conditions And Its Judgement Of Criminal Compulsory Medical Procedure

Besides the introduction, there are three parts in this thesis.The first part is the normative analysis of applicable conditions in criminal compulsorymedical procedures. On the subject condition, the article suggests that the word “mentaldisorders” should be thought with a broad perspective. Judges have the power to evaluatecriminal responsibility and there are three misunderstandings in judicial officials: thatcriminal responsibility being evaluated only and all by appraisers is adequate, that sick equalsto innocence, and that the understanding of identification and control ability stays at theconceptual level. On the behavior condition, the article advocates pure usurpation should beexcluded. Crime methods, crime locations, foreseeable hazard degree, the number andfrequency of the crime should be considered to the analysis in social harm of the applicant’sviolence and attempted crime could also be brought into criminal compulsory medicalprocedure. Criminal compulsory medical procedure is retroactive, but being traced too early isnot appropriate and the review of custody wishes, custody conditions, progression of thedisease, the subsequent harmful behaviors should be strengthened. On the condition ofnecessity, the author claims that presuming the applicants having a direct danger to thesociety only by the seriousness of this crime and mental disorders is not appropriate. Thesocial danger should include the severity (severe recidivism behavior and high risk ofrecidivism), instantaneity and when other methods are adequate to eliminate the danger of theapplicants, there is no need to mandatory hospitalization. Based on this analysis, the authorlists six situations that the applicants are probable to continue harming the society and threesituations that the applicants have no potential danger.The second part is the review and judgment on the applicable conditions in criminalcompulsory medical procedures. On the subject condition, the article advocates that thejudicial officers should establish a concept of presumption of anosis. When reviewing theforensic psychiatry appraisals, we should start from the formal examination and substantiveexamination. The formal examination should focus on the professional capacity of the expert,the chanllenge to the appraiser, the materials which are the basis of the appraisal, the methodsand analysis of the appraisal. The substantive examination should first exclude the possibilityof “being disguised as a patient of mental disorders” and “bribing appraisers” with other evidence. Then we should evaluate the applicant’s criminal responsibility with mentaldisorders and case from three respects. First, whether there is a causality between psychiatricsymptoms and the crime. Second, whether the applicant can understand the content,consequence of the act and right or wrong. Third, whether his control ability is weakened anddegree of the weakening. On the behavior condition, the article claims that standard of proofshould beyond reasonable doubt and the confessions of the applicant is qualified to be anevidence and is basically credible. However, the review should be thought twice on whetherthe testimony is in line with his intelligence, memory and express ability. When theconfession is contradictory to other evidence, find the reasons. In the cases that there is fewdirect evidence, psychiatric experts could be brought in to assist judicial officers reviewingthe confessions. On the condition of necessity, the article claims that the psychiatric expertopinions can be brought into the evaluation of dangerousness of the applicant in the form ofinspection report. The judicial officers should determine on a comprehensive basis and givereasons. The standard of proof should be clear and convincing. When evaluating the socialdangerousness of the applicant, judicial officers should interview the applicant, consult theappraiser and the doctor, ask the statutory agent and family of the applicant and pay a visit tothe place the applicant lives. The review of the dangerousness could proceed from thepathology, the custody of the family, the history of substance abuse, external factor,personality characteristics and personal basis conditions.The third part is the problems existed and advise to future reform of applicableconditions of criminal compulsory medical procedure. According to investigate and reflectionof judicial officers, the applicable conditions has three problems which are the forensicpsychiatric appraisal conducting the trial, the lack of specific standards of dangerousnessevaluation and no system support for the psychiatric experts to participate in. To solve thisthree problems, the article advocates that the evaluation of criminal responsibility should bedeprived from the forensic psychiatric appraisal, the mechanism of evaluation of socialdangerousness of the applicant should be formed and establish the system for the psychiatricexperts to participate in. The deprivation of the evaluation of criminal responsibility shouldproceed step by step from the recent future to the distant future. In the near future, appraisersstill can put forward their own evaluation advice beyond the appraisal. In the long run, judgesand appraisers should work together to evaluate criminal responsibility and the judge is in themaster status. Establishing the mechanism of the evaluation of dangerousness should proceed in three respects that the specific standards and consideration factor of dangerousnessevaluation should be determined by legislations, that the dangerousness rating scale ofpatients of mental disorders in criminal compulsory medical procedure and that the evaluationof dangerousness should be included to the forensic psychiatric appraisal. When psychiatricexperts participate in the procedure, in qualified cities and complex and difficult cases, expertjury should be adopted as far as possible. In other non-qualified cities, expert consultationcould be used. Besides, the article advocates to establish national or provincial psychiatricexpert consultation committees and build corresponding rule of expert consultation.