Research On The Legal Regulation On The Criminal Mandatory Medical Treatment In China

As early as in 1997,the criminal law provided the compulsory medical treatment of the mental patients not liable for the criminal responsibility by the government when necessary but it was not until the 2012 criminal procedure law to add special procedure for deciding to transfer for compulsory medical treatment,which begins to fill the gap of the disposal of the mental patient not liable for criminal responsibility.The judicial process of compulsory medical examination and the follow-up thereof have led to a series of questions that should be clearly answered: how to determine the qualification of medical appraisers;whether the public security organ may entrust a mental hospital or take advantage of the treatment of public security before the trial;how the guardian's rights and responsibilities are manifested;whether the procuratorial organs shall intervene in the supervision of follow-up treatment;and whether a mental hospital can decide the mental patient to leave the hospital.If these questions are not carefully answered,the contrast phenomenon may occur that the criminal segregation from society has a period of time,but the mental patient segregation has not.The author,through the case of a mental patient who strangled his own child handled by the procuratorial organ,discusses these issues in detail in order to get a reasonable and effective system plan.This paper is divided into six parts,about 30,000 words.Part One introduce the facts of a case handled by the procuratorial organ in which A * strangled his own child because his spirit was out of control,raising the substantial standards for determining mandatory medical treatment and regulations on implementation.First,when a public security organ is dealing with a case of violence resulting in harm by a mental patient,it shall be determined by the judicial appraisal department of the public security and procuratorial organs,or shall entrust a doctor of the mental hospital to identify it.If a guardian or family member has an objection to the appraisal,who shall bear the cost? Second,whether the *'s mother,more than seventy years old,can assume responsibility in the case,in the absence of guardians how to guarantee the basic rights of the person submitted for compulsory treatment,and how to protect their rights to return to the society in the process of treatment.Third,where mental patients whom the court decides to transfer for the compulsory medical treatment should be sent to,whether diagnosis made by the attending physician can have identification effect during the treatment,who decides to lodge and terminate the compulsory medical treatment?Part Two based on the actual situation of the short period of the construction of compulsory medical system,defines the basic connotation and legal characteristics of criminal compulsory medical treatment.Legal regulations on criminal compulsory medical treatment include: as for the mental patients who commit violent acts of endangering public security or cause serious damage to citizens' personal safety,but are not liable for criminal responsibility through legal procedure identification and have the possibility to harm society,the public security organ submits them for judgment by the court according to law;the court reviews the treatment criteria and decides to receive them for treatment in accordance with the special procedures;the government receives them for treatment according to law;and the activity of return visit for treatment after the mental patients return to the society.The basis of criminal compulsory treatment is different from criminal compulsory measures.As a unique way of dealing with criminal justice,criminal compulsory treatment has the double functions of protecting the legitimate rights and interests of mental patients and realizing social defense.Based on the dual objective and combining with the problems exposed in this case,this paper studies the specific regulations on transfer,decision and treatment.Part Three combs the laws and regulations regulating the criminal compulsory medical process and specific activities,seeking systematic basis for the treatment of the case and the timely and reasonable disposition of the similar situation.The first is to analyze the key conditions of the confirmation of compulsory medical treatment under Paragraph 1,Article 18 of the criminal law with the focus on necessity.The second is to analyze the special procedure of the compulsory medical treatment set by the criminal procedure law,and the connection of the procedural law by referring to the substantive law;the third is to analyze the degree of treatment regulated by the Mental Health Law according to the compulsory treatment procedure,and connect the administrative law and the criminal law and safeguard the basic rights and interests of the treated.Part Four discusses the objects and scope of the criminal compulsory medical treatment from the substantive law and clarifies the substantial conditions of compulsory treatment.This party analyzes in detail the connotation of “continuing to endanger society” in the substantial regulations.In order to avoid difficult judgment caused by its meaning,resulting in narrow applicable scope,this part suggests it be necessary to focus on the possibility of hurting others or endangering public safety with violence and avoid improper expansion of “continuing to endanger society”.It is necessary to review the feasibility and necessity of expanding the applicable scope of compulsory medical treatment in relevant judicial activities,connect civil compulsory medical treatment system and incorporate mental patients without ability to receive trial,and to serve the sentence or mental patients with limited capability.Part Five focuses on the analysis of criminal compulsory medical appraisal.In terms of the questions in the appraisal,unclear appraisal institutions,discrepant appraisal standards and unequal qualifications of appraisal personnel,this part explores the issues deserving attention when submitting the acceptance of appraisal opinions and proposes the suggestions for the improvement of the appraisal link.And this part also proposes preliminary opinions on specialized selection of appraisal institutions,scientific establishment of appraisal standards,improvement of appraisal level of appraisal personnel and improvement of the accuracy and credibility of the appraisal opinions.Part Six discusses the control of the criminal compulsory medical process from the procedural law.The first is to discuss the conditions and trial procedures for temporary protective restraining measures before and between mandatory medical treatment,and suggests that temporary protection measures should be implemented under the guidance of a psychiatrist.The second is to explore the regulation on compulsory medical treatment,and in view of the lack of mandatory medical executive institutions,the failure to guarantee funds,suggests improving the supporting measures and mechanism,strengthening the government's financial support,fully launching social forces to raise money,clarifying mandatory qualification of medical institutions and conditions,and strengthening management.The third is to analyze the link between the mental health law and the criminal law,integrate the whole medical resources,and raise the legal regulation of the entire compulsory treatment mechanism by using the criminal compulsory medical procedure.