Legal And Practice Research On The Procedure Of Compulsory Medical Treatment

In Criminal Procedural Law(version of Year 2012), the 5th List “Special Procedure” provides a full chapter to regulate the procedure of compulsory medical treatment, including the applicable conditions, trial subject, trial methods, remedy, execution, supervision, etc. Thus the way of compulsory medical treatment for patients are defined by judicial review, which lays a foundation for the judicial practice system of compulsory medical treatment. However, in the past 3 years since the law took effect, there exist many problems in implementation of compulsory medical treatment. For example, judges are usually lack of expertise in mental diseases, court proceedings are not confrontational enough, and the procedure for termination is not clear as well. These problems also result in the respondent being deficient in rights protection, lack of remedy procedure, uneven litigation structure, etc. Based on the problems occurred in practice, the thesis analyzes the trial subject, trial process, and authentication/termination procedures of the compulsory medical treatment. It presents my own thoughts on these issues and also learns from the experience of other countries and improvement opinions from domestic scholars as well. The thesis aims to offer suggestions for establishing and improving the legal system for compulsory medical treatment on mental patients in China.The thesis is consist of five chapters excluding the preface and the postscript. The 1st Chapter studies a real case of compulsory medical treatment which was heard by myself. Through introduction and playback of the case, the trial situation could be sort out and the ruling basis could be concluded. Then I summarize and put forward four problems encountered in the trial, which could lead to the four aspects to be discussed in the thesis. The four problems are:1) people who form the collegiate bench are lack of related medical knowledge;2) the trial for compulsory medical treatment has become a mere formality;3) the establishing of authentication institution and procedure of authentication are not scientific;4) the procedure for termination is too abstract.The 2nd Chapter proposes a comprehensive primary concept with respect to the deficiency in trial subject in the procedure of compulsory medical treatment. On the one hand, it is suggested to add medical professionals to the current structure of collegiate bench or set up professional collegiate bench. On the other hand, we could explore to centralize the jurisdiction and the trial in a large scale, and establish examination committee system to make up for inadequate knowledge in medical science of the judges.Considering the deficiency in the trial procedure of compulsory medical treatment, the 3rd Chapter analyzes who should judge the criminal capacity and how to investigate the possibility of continued social harmfulness. It further comes up with setting up expert assistant system, in order to enhance suit opposability and change the weak court-hearing situation.The 4th Chapter focuses on the problem in the authentication procedure of compulsory medical treatment. It discusses from three aspects and proposes corresponding solutions, including:1) the appraiser shall appear in court for cross-examination;2) to grant the litigant with the rights of forensic expertise;3) to build a unified accrediting body.The 5th Chapter compares the procedure of compulsory medical systems in different countries and proposes that China should structure a regular assessment system but non-scheduled system for determining the period of compulsory medical treatment. In addition, suggestions are given on how to improve the executive body of compulsory medical treatment in China.