Actio Libera in Causa of Mentally Disordered Offenders in Korea: A Legal Perspective
In an era of rapid global changes, mental disorder has become the third most common disease in the world after heart disease and cancer. The increasing number of mentally disordered offenders have also aroused the concern of people from all walks of life. In addition, it is permitted by law to grant a commutation of sentence and not applicable to the legal concept of “actio libera in causa” under Article 10, Section 3 of the Criminal Law has often aroused the indignation of the people.
South Korea, which has a similar historical background and legal history to Taiwan, also faced the same issue. However, even though the Korean courts have abandoned applying actio libera in causa due to ambiguous interpretation, after the impact of repeated cases by mentally disordered offenders, Korean society has reflected and reached a consensus to push legislators to enact special law, including new law on chemical castration for Paraphilia who are at risk of recidivism, at the same time judges are given the discretion to apply a reduced sentence case by case.
Legal professions should not shift all the responsibility of preventing possible social hazards to the medical professions, as the punishment of mentally disordered offenders should certainly invoke the non-delegation doctrine. To conclude, legislators should set the future direction clearly after a consensus being formed in Taiwanese society.