第6章 Abstract

Compulsory medical treatment is a kind of judicial treatment of mental patients.Under the restriction of social development level and psychiatry level in different historical periods, the judicial treatment of the mental patients has experienced the development changes from confinement and punishment to supervision and treatment.Criminal compulsory medical measure is a security measure, which aims to achieve social defense and refresh the mental patients' health.It limits or deprives the personal freedom of mental patients who have no criminal responsibility but have committed the crime and have the possibility of continuing harm to society.In the long term, the application of compulsory medical treatment in China lacks procedural regulation, which has caused many social problems.The establishment of the criminal compulsory medical procedure realizes the judicial application of compulsory medical treatment, alleviates the embarrassing situation of the absence of compulsory medical procedures.Social defense and rights protection are not only the purpose and function of compulsory medical treatment, but also the legitimate basis for constructing criminal compulsory medical procedures.The compulsory medical treatment will infringe upon the fundamental rights such as the right of personal liberty and the right to health.Based on the spirit of right protection, the application of criminal compulsory medical treatment should follow the principle of due process, non－disease presumption and proportionality.

The litigation subject and litigation object are the basic theoretical category of criminal compulsory medical procedure.As a special criminal procedure, the scope of the litigation subject in the compulsory medical procedure is not exactly the same as that in the criminal normal procedure.The litigant's position, the litigation authority and the rights of litigation have their particularity in the compulsory medical lawsuit.The litigation object of compulsory medical procedure, which are the applicable conditions, include the specific violence behavior, the criminal responsibility of the mental patients and the dangerousness of the mental patients.In the compulsory medical lawsuit, the applicable conditions of compulsory medical treatment are not only the focus of the dispute between the prosecution and defense, but also the important contents of the court's trial and adjudication.

The basic system of criminal compulsory medical procedure include psychiatric identification system, proof system and protective restraint measure system.In psychiatric identification system, in order to ensure the rights of the parties, clear conditions for the identification of authorities should be set, the parties' right to apply for appraisal and the right to participate in the appraisal procedure by the identified person and victim should be guaranteed.In order to enhance the accuracy and acceptability of the identification results, reasonable qualification of identification institutions and selection rules of the appraiser should be established.In the proof system of compulsory medical treatment, based on the particularity of procedure setting and object of proof, the burden of proof and the standard of proof also have their particularity.Aiming at the existing problems of protective restraint measure system, the nature, the application deadline and phase of protective constraint measures shall be clear.Its application should follows the principle of necessity and appropriateness, and to set up an effective remedy mechanism on the basis of judicial review and to coordinate its relationship with the coercive measures.

Criminal compulsory medical treatment procedure can be divided into the pre－trial procedure, the trial procedure, the relief procedure and the execution procedure.Compulsory medical procedure can be initiated either by the procuratorial organ or by the court.In the trail procedure, the applicants or the defendants have the qualified right to participate in the trial and the right of counsel.If the respondents or the defendants and their legal representative or litigation agent have an objection to the appraisal result, the appraiser shall appear in court when the applicants applies for cross－examination.In order to achieve effective cross－examination and review of the appraisal opinions, the prosecution and defense have the right to apply for expert assistance to appear in court and to debate the professional issues in the appraisal.Under the participation of all parties, the judge will make a decision after the review of the evidence of the whole case, including the identification of mental illness.In order to realize the effective remedy for the rights of the parties, China's compulsory medical procedure regulates two－element relief mechanism, which include reconsideration system and periodic diagnosis and evaluation.In order to improve the remedy system of compulsory medical lawsuit, the appeal should be taken as a substitute for reconsideration, the cycle of diagnosis and assessment and the time limit for putting forward releasing suggestion should be set, and the substantive settlement of the appeal and releasing trail should be promoted.At present, the implementation of compulsory medical treatment is faced with such problems as unclear executive agencies, insufficient executive ability and singleness of execution mode.On the basis of the current legal provisions and judicial resources in China, and learn from the legislative experience of the developed countries of the rule of law, we should improve the conditions of ANKANG Hospitals (Psychiatric hospitals); make different compulsory medical measures applicable to different mental patients, and gradually realize the deinstitutionalization of compulsory medical implementation institutions.

Key words: criminal compulsory medical treatment measures; mental patients; social defense; supervision and treatment; procedural control