[Today Also Insanity②] Legal Community: "'Drunken Blackout' Mitigation Difficult... Emotional Procedures Limited"

[Asia Economy Reporters Byungseon Gong and Daehyun Kim] South Korea's criminal law does not specifically explain the characteristics of insanity or diminished capacity. The causes of mental impairment vary, including intoxication, drug addiction, and mental illness. Claims of diminished capacity are often raised in trials involving various charges such as assault, injury, fraud, sexual violence punishment laws, and violations of the Road Traffic Act. This is why specific judgments can differ across courts.

Nevertheless, the legal community shares the view that claims of diminished capacity based solely on "drunkenness" are increasingly difficult to accept in court. Article 10, Paragraph 3 of the Criminal Act states that "if a person deliberately causes mental impairment while foreseeing the risk, the provisions of Paragraph 2, which allow mitigation for diminished capacity, do not apply." In various precedents, it has been judged that if a defendant drinks heavily intending to drive under the influence and causes a traffic accident, it is considered intentional induction of mental impairment despite foreseeing the risk, and thus mitigation for mental impairment cannot be applied.

There are also cases where the defendant experienced a "blackout" at the time of the crime. This is a phenomenon where a person does not remember actions they consciously performed. In 2020, the Supreme Court commissioned Sungkyunkwan University to conduct a "Research Report on Blackout Phenomena in Criminal Trials," where the research team analyzed that it is difficult to evaluate a person simply judged to have a blackout (due to drinking) as lacking or having diminished "decision-making ability."

Ultimately, the interpretation by the discretionary court and sufficient evidence submission by prosecutors and defense attorneys have become more important. Although external expert evaluation procedures related to diminished capacity exist, their practical use in trials is limited. Most judgments are made based on evidence submitted by prosecutors and defendants rather than shifting responsibility to external experts.

Attorney Miri Kim of Dongin Law Firm said, "For detailed judgment, it would be possible for the court to hear expert opinions through an 'evaluation procedure' and determine the need for mitigation," but added, "However, since it is frequently used in practice, there seem to be many limitations."

A judge from the Seoul Central District Court also stated, "If it is not a mental evaluation related to a pre-existing mental illness, it is difficult to assess the state of alcohol or drug consumption after the crime as time passes," adding, "This is why the court's judgment is important." He further noted, "If materials such as CCTV footage are submitted extensively by both investigative agencies and the defendant's side, the trial process will be smoother."

Attorney Kim said, "More detailed judgment is needed in practice regarding whether the diminished capacity is sufficient to warrant mitigation of punishment," adding, "The court will mainly examine whether the defendant intentionally or negligently caused the crime, whether there is a history of drinking and drunk driving, whether the outcome was sufficiently foreseeable, and whether the damage caused by the crime is significant."