In recent days, wicked crimes including serial killer and arson have frequently taken place, aiming at unspecific majority of people, and those who commit such crimes are generally called psychopaths. Affected by mental disorder, psychopaths are incap...
In recent days, wicked crimes including serial killer and arson have frequently taken place, aiming at unspecific majority of people, and those who commit such crimes are generally called psychopaths. Affected by mental disorder, psychopaths are incapable of feeling guilty, and when it comes to interpersonal relationship they are short of their ability to empathize others, having proclivity to trick other people through their superficial emotion, and to perform brutal violence. According to Dr. Robert Hare, a renowned researcher in criminal psychology, psychopaths are extremely rational, recognizing what their action means and what the causes are. Being a psychopath is heavily influenced by genetic factor, and because psychopaths are usually not expected to have self-reflection or reformation due to their unique emotional characteristics, it is significant to identify their thought and feeling than their antisocial action. Therefore, considering their personality and their characteristics, they are defined to be “emotionally disturbed people with cognitive capacity and decision-making ability, who repeatedly reveal immoderate antisocial actions.”
Since psychopaths are not able to taste the profundity of sentiment, they not only cannot experience physiological changes that are followed by a specific sentiment, but also have neither morality nor conscience that makes an ordinary individual feel regret, humiliated, or guilty. Furthermore, they lack empathic ability that help understanding and feeling others’ sentiment and this psychological characteristic prevents them from comprehending their victims’ suffering and misery. Also, they act impetuously, impatiently and irresponsibly for consequences which are led by their misdeeds. Their irresponsibility can be seen throughout their whole lives, since they habitually repeat lying and tricking.
In this paper, the Common law, which contains well-established principles in mentally defective’s responsibility judgment (Zurechnungsfehigkeit), was mainly examined in comparison to our legal system, and the legal systems of Germany and Japan, which are considered to be the Continental law that is similar to ours, were secondarily examined. In the Common law, the principles that are historically applied to responsibility judgment are “Durham Rule,” which is based upon biological factor, “M’Naghten Rule,” which is based on recognition capability, “Irresistible Impulse Rule,” which is based on decision-making or self-control ability, and “Model Penal Code Rule,” which widely integrates the rest of principles above. However, since many people began to complain that these principles mostly take a role as an indulgence to mentally ill criminals, revised theory that modifies the penal law and ‘Guilty but Mentally ill (GBMI)’ principle have been enforced in US. A plea of GBMI distinguishes mental disorder from metal disease; therefore, when the criminal is judged to be mentally disordered, he or she is found not guilty, and when he or she is judged to be mentally diseased, he or she is found guilty, receiving a criminal penalty after taking medical treatment and custody. Although it is problematic to distinguish both, a plea of GBMI must be a positive example of punishment of psychopathic incident. Besides, although our legal system supports the Continental law, the system does not distinctly define mental disorder unlike those of Germany and Japan, having only Korean criminal law section 10. Therefore, by referring to the standard of judgment that defines mental disorder in the German legal system, our criminal law is required to be amended by adding a clear definition of ‘psychopath’ as well as their responsibility judgment definition. In Korea where the definition of ‘psychopath’ does not exist in law, it is controversial whether psychopaths’ responsibility judgment is reliable or not. As previously stated, because psychopaths are considered to have enough cognitive capacity and decision-making ability, they are not applicable to the Korean criminal law 10, a rule of mentally or physically handicapped. However, because they are lack of ethically emphatic ability and because they are very likely to commit crime whenever they desire by disregarding the moral requirement of law, they are highly likely to in danger of second conviction. Therefore, since they are criminals who violated law and are responsible for their actions, psychopaths are supposed to be liable for their misdeeds.