2. The Defendant’s revocation of qualifications as infant care teachers against the Plaintiff on April 14, 2015 shall be revoked.

3. All costs of the lawsuit shall be borne by the defendant.

A) The Plaintiff is a child care teacher of “○○○○ Child Care Center” at his/her domicile (hereinafter “○○○ Child Care Center”).

B) On April 14, 2015, the Defendant issued a disposition to revoke the Plaintiff’s qualification of infant care teacher from June 1, 2015 on the ground that “The Nonparty (hereinafter “victim”) who was an infant at the time of her birth (hereinafter “victim”) was issued a judgment of physical abuse by a specialized child protection agency on the ground that “the Plaintiff’s birth of the Nonparty (hereinafter “victim”), who was an infant at the time of her birth, was subject to a disposition of KRW 1 million from the Gu’s District Prosecutors’ Office, depending on the fact that he was judged to have his physical abuse by the specialized child protection agency.”

[Ground of recognition] Unsatisfy, Gap evidence No. 1, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) When the Plaintiff received a child victim, the Plaintiff did not have any fact that he/she committed the bodily injury of the child victim. However, the Plaintiff merely saw the equipment on the floor of the child victim, with the words that he/she caused the fluencing of the flusium for the child victim at the time of the fluencing of the flusium, and did not have any emotional abuse.

2) While the Plaintiff was indicted for committing a crime of the Child Welfare Act by committing emotional abuse against a child victim by taking the birth floor of the child victim into account with their equipment, the suspension of punishment of a fine of one million won was suspended. The suspension of sentence is not a ground to revoke the qualification of a child care teacher. Therefore, the instant disposition is unlawful.

B. Relevant statutes

The entries in the attached statutes are as follows.

C. Determination

1) Facts of recognition

A) On February 23, 2015, the prosecutor of the District Public Prosecutor’s Office: (a) requested the District Public Prosecutor’s Office to attach the Plaintiff to the District Public Prosecutor’s District Public Prosecutor’s Office the Plaintiff not to have another child in the Child Care Center; and (b) on January 23, 2014, the Defendant notified the Defendant of the claim for such summary order on February 25, 2015, on the ground that the Defendant committed emotional abuse that may harm the mental health and development of the victimized child by committing the crime of violating the Child Welfare Act by making it possible for the said child to take care of the birth of the child in the child care center.

B) On May 26, 2015, the Jung-gu District Court rendered a summary order to impose a fine of one million won upon the Plaintiff in the case of violating the Child Welfare Act (hereinafter “Child Welfare Act”) on May 26, 2015, and the Plaintiff applied for formal trial, and on February 1, 2016, the Jung-gu District Court rendered a judgment to recognize the Plaintiff’s violation of the Child Welfare Act and to impose a fine of one million won in the case of violating the Child Welfare Act (hereinafter “Child Welfare Act”). The appellate court, in which the Plaintiff appealed, recognized the crime of violating the Child Welfare Act, and the appellate court, the appellate court, recognized the Plaintiff’s violation of the Child Welfare Act and sentenced the Plaintiff to the suspension of the imposition of a fine of five million won on June 3, 2016, which became final and conclusive.

[Ground of recognition] Items 5, 6, Eul evidence 3 and the purport of the whole pleadings

2) Determination

A) Article 48(1) of the former Infant Care Act (amended by Act No. 13321, May 18, 2015) provides that where the head of a child care center or the head of a child care center falls under any of the following subparagraphs, the Minister of Health and Welfare may revoke his/her qualification. Article 71(1)3 of the Child Welfare Act provides that a person is punished under Article 17 of the same Act by committing an act prohibited under Article 17 of the same Act. Article 17 Subparag. 3 of the Child Welfare Act provides that an act of emotional abuse that harms a child’s body or undermines physical health and development, and Article 17 Subparag. 5 of the same Act provides that a person who is delegated with the authority of the Minister of Health and Welfare or the Minister of Health and Welfare, intends to revoke his/her qualification as a child care teacher, it is insufficient to say that the child care teacher was merely punished under Article 17 of the Child Welfare Act, and that the child care teacher was punished under Article 71(1) of the Child Welfare Act.

B) However, according to the following circumstances recognized in light of the above facts, the instant disposition was made against the Plaintiff who was not punished pursuant to Article 71(1) of the Child Welfare Act, and is unlawful.

① At the time of April 14, 2015 when the Defendant rendered the instant disposition, the prosecutor of the - government district public prosecutor’s office requested the - government district court to issue a summary order of KRW 1 million against the Plaintiff, but did not issue a summary order of KRW 1 million. Therefore, the Plaintiff cannot be deemed to have been punished as a violation of the Child Welfare Act.

② Although the Plaintiff received a summary order of KRW 1 million as a result of the crime of violating the Child Welfare Act, the Plaintiff filed an objection to the summary order and filed an application for formal trial. In the future criminal procedure, the Plaintiff was finally granted a suspended sentence and the suspended sentence became final and conclusive. However, the suspended sentence is not imposed since the suspended sentence was suspended on the crime of which the crime was recognized, and as long as the suspended sentence was not imposed on the person who was invalidated and suspended, it shall be deemed that the suspended sentence was acquitted upon the lapse of two years from the date of the suspended sentence (Article 60 of the Criminal Act). Therefore, the Plaintiff, for whom the suspended sentence for the crime of violating the Child Welfare Act was suspended, cannot be said to have been punished under Article 71(1) of the Child Welfare Act.

③ In addition, the Defendant took the instant disposition on the ground that the Plaintiff committed physical abuse by taking the growth floor of the victimized child into account of the equipment, and the facts charged by the Plaintiff, which was found guilty, committed emotional abuse causing harm to the mental health and development of the victimized child by taking the equipment with the growth floor of the victimized child into consideration. However, under Article 17 subparagraph 1 of the Child Welfare Act, physical abuse is deemed to have been done in such a way as to cause damage to the child’s body or harm to the physical health and development of the child, and thus, it cannot be deemed to have committed emotional abuse that may harm the mental health and development of the child.

3. Conclusion

Thus, since the disposition of this case is unlawful, the plaintiff's claim seeking its revocation shall be accepted for the reasons, and since the judgment of the court of first instance is unfair with different conclusions, it is so decided as per Disposition by citing the plaintiff's appeal.

[Attachment]

Judges Yoon Sung-won (Presiding Judge)