[2] In a case where the Defendant, who operates a dog, was indicted for violating the former Animal Protection Act on the ground that he had slaughtered the bats of cattle with the flow of electricity in the form of combining the dog at the farm slaughter facilities by cutting the bats into the bats of the bats, the case holding that the lower court acquitted the Defendant of the charges, on the grounds that the lower court erred by misapprehending the legal doctrine on the determination of “cruel methods” under Article 8(1)1 of the former Animal Protection Act, and on the elements constituting the elements of Article 46(1) of the same Act, thereby

The term “cruel” in a prior meaning refers to “cruel and cruel pain without recognition.” The discussions on cruelness are relative and dynamics that vary depending on the age and society, and are in depth related to thought, religion, and custom. Therefore, whether the method of slaughter is a cruel method prohibited under Article 8(1)1 of the former Animal Protection Act, which is the constituent element of criminal punishment, ought to be determined in an objective and normative manner according to the social norms from the perspective of the average person rather than from the subjective standpoint of a specific person or group, rather than from the perspective of the specific person or group. In addition, in light of the legislative purpose of the former Animal Protection Act, the meaning and legislative purport of Article 8(1)1 of the same Act, and the contents of various relevant provisions regarding the methods of slaughter of animals, determination of whether the method of slaughter is a cruel method ought to be made by comprehensively taking into account the impact of the permission of the slaughter method on national sentiments, such as respect for animals, characteristics of animals, and the degree and duration of pain caused by the slaughter method, the age of animals involved, and social perception of the society.

(1) The purpose of the former Animal Protection Act is to contribute to protecting the lives of animals, guaranteeing their safety, and promoting the welfare of animals, and fostering national sentiments, such as respect for life of animals (Article 1). The concept of animals subject to the application of the Act is limited to vertebrates, such as cryp oil, etc. (Article 2 subparag. 1) and certain acts causing the death or death of animals, which are vertebrates with developed genetic systems through which they could feel pain (Article 8(1)).

In light of the legislative purpose of the former Animal Protection Act, the subject of application, and the language and structure of each subparagraph of Article 8(1) of the former Animal Protection Act, etc., it is reasonable to view that the method of killing animals causes pain to animals in the course of slaughter due to cruel methods, and that such method may have an adverse impact on national emotional cultivation, such as respect for life of animals, if such method is permitted, if such method is permissible, it may have an adverse effect on the cultivation of national sentiments. Therefore, even if a specific slaughter method cannot be objectively measured the degree of pain inflicted on animals, it can be deemed that the method of slaughter itself constitutes a cruel method prohibited under Article 8(1)1 of the former Animal Protection Act, in full view of the implements used in such method, form of act, and appearance of the body therefrom, in cases where it can be deemed that the method of slaughter itself is objectively and objectively cruel

(2) Under the title of Article 10 of the former Animal Protection Act, all animals shall be slaughtered by cruel methods, while unnecessary pain, fear, and stress shall not be caused during the slaughter process (Article 10(1)), and where animals are dead in accordance with the Livestock Products Sanitary Control Act or the Contagious Animal Disease Prevention Act, the method prescribed by Ordinance of the Ministry of Agriculture, Food and Rural Affairs shall be minimized by using the method prescribed by Ordinance of the Ministry of Agriculture, Food and Rural Affairs (Article 2(2)), and where other animals are to be inevitably killed (Article 3). In addition, the Enforcement Rule of the same Act provides for the methods of slaughter by livestock (Article 2 and attached Table 1), among the livestock, the methods of slaughter by livestock (Article 2 and attached Table 1), and Article 10(2) of the former Animal Protection Act and Article 6(2) of the Enforcement Rule of the same Act provide for the detailed methods of slaughter with respect to cattle, pigs, chickens, and ducks and ducks in accordance with their characteristics by livestock in accordance with the regulations on slaughter by livestock.

In light of the contents of the relevant provisions regarding the slaughter method of animals, whether a specific slaughter method constitutes “cruel methods” prohibited under Article 8(1)1 of the former Animal Protection Act ought to be determined by considering the degree and sustainable time of the pain inflicted on the relevant animal depending on the characteristics of each animal. The same applies to the same slaughter method, even if using the same substance, tool, etc., the degree of pain inflicted on the relevant animal may vary depending on the characteristics of each animal; and the same applies if using the same substance, tool, etc., differs from the specific method of use and form of conduct. Therefore, without considering the aforementioned circumstances, the mere fact that a specific slaughter method is prescribed as a general slaughter method under the relevant Act or that the substance, tool, etc. used in the slaughter is identical or similar to that prescribed by the relevant Act cannot be deemed as a slaughter method suitable for other animals’ characteristics.

③ Inasmuch as the perception of a specific animal affects the assessment of the act of killing or causing death of the relevant animal itself and the method thereof, the determination of whether a specific animal constitutes a cruel method prohibited under Article 8(1)1 of the former Animal Protection Act shall be based upon consideration. Such recognition ought to be objectively evaluated in light of social norms from the standpoint of an average person.

[2] In a case where the Defendant, who operates an open farm, was indicted of violation of the former Animal Protection Act (amended by Act No. 14651, Mar. 21, 2017; hereinafter the same shall apply) on the ground that he/she slaughtered cruel animals by means of cutting down the necks of electricity at the 1strings of the slaughter facilities, taking into account the impact of the permit for slaughter methods on the national sentiment, such as respect for life of animals, the degree and duration of pain caused by the slaughter methods in question, the age of the animal, awareness of the society, etc. Thus, the lower court’s determination on whether the Defendant’s act of killing animals was conducted by comprehensively considering the following factors: (a) the animal slaughter method established pursuant to Article 6 of the Enforcement Rule of the Animal Protection Act (amended by Act No. 14651, Mar. 21, 201); and (b) the method of breaking animals to the extent that it can generally be seen that the Defendant did not have any influence on the slaughter method of animals; (b)

1. A. Article 8(1) of the former Animal Protection Act (amended by Act No. 14651, Mar. 21, 2017; hereinafter “former Animal Protection Act”) provides that “no person shall commit any of the following acts against an animal.” Article 8(1)1 of the same Act provides that “the act of killing an animal by cruel means, such as hanging the neck, etc.” (hereinafter “instant provision”). Article 46(1) of the former Animal Protection Act provides that a person who violates the instant provision shall be punished.

B. The term “cruel” refers to “cruel or cruel pain without recognition” in a prior meaning. The discussion on cruelness is relative and dynamics that vary according to the age and society, and is in depth related to thought, religion, and custom. Therefore, whether the method of slaughter prohibited under the instant provision, which is the constituent element of criminal punishment, is not a subjective point of view of a specific person or group, but a objectively and objectively determined according to the ordinary social norms of the society from an average person’s standpoint rather than a subjective point of view of a specific person or group. In addition, in light of the legislative purpose of the former Animal Protection Act, the meaning and legislative intent of the instant provision, and the contents of various relevant provisions regarding the methods of slaughter of animals, determination of whether the method of slaughter is a cruel method ought to be made by comprehensively taking into account the impact of the permission of the slaughter method on the national sentiments, such as respect for animal life, characteristics of each animal, and the degree and duration of pain caused by the relevant slaughter method, the age of the target animal, social perception, etc.

1) The purpose of the former Animal Protection Act is to contribute to protecting the lives of animals, guaranteeing their safety, and promoting the welfare of animals, and fostering people’s sentiments, such as respect for life of animals (Article 1). The concept of animals subject to the application of the Act is limited to vertebrates, which have developed inverte system through which they could feel pain (Article 2 subparag. 1), and only those acts causing death or death of animals are prohibited (Article 8(1)).

In light of the legislative purpose of the former Animal Protection Act, the subject of application, and the language and structure of each subparagraph of Article 8(1) of the former Animal Protection Act, etc., it is reasonable to view that the instant provision provides for prohibited acts in consideration of the fact that the method of killing animals causes pain to the animals in the course of slaughter due to cruel methods, and that if such method is permitted, it may have an adverse effect on the cultivation of national sentiments, such as respect for life of animals, etc. Therefore, even if the degree of pain inflicted on animals cannot be objectively measured, considering the mechanism used for slaughter, form of act, and appearance of the body therefrom, if it can be evaluated that the slaughter method itself is objectively and objectively cruel by social norms, it can be deemed that the pertinent provision constitutes a cruel method prohibited under the instant provision.

2) Under the title of Article 10 of the former Animal Protection Act, all animals shall be slaughtered by cruel methods, while unnecessary pain, fear, and stress in the course of slaughter shall not be caused (Article 10(1)), and where an animal is dead in accordance with the Livestock Products Sanitary Control Act or the Contagious Animal Disease Prevention Act, the method prescribed by Ordinance of the Ministry of Agriculture, Food and Rural Affairs shall be minimized by using the method prescribed by Ordinance of the Ministry of Agriculture, Food and Rural Affairs (Article 2(2)), and where an inevitable death of an animal is inevitable, the method of slaughter by livestock (Article 2 and attached Table 1) shall be prescribed in the Enforcement Rule of the same Act (Article 2 and attached Table 1), and the method of slaughter by cattle, pigs, chickens, and ducks among the above livestock shall be prescribed in the detailed method of slaughter in accordance with the characteristics of each livestock in accordance with the regulations on slaughter of animals, which was enacted pursuant to Article 6(2) of the Enforcement Rule of the same Act.

In light of the contents of the relevant provisions regarding the slaughter method of animals, whether a specific slaughter method constitutes “cruel methods” prohibited under the instant provision ought to be determined by considering the degree and duration of the pain inflicted on the relevant animal depending on the characteristics of each animal. The same applies to cases where the degree of pain inflicted on the relevant animal during the slaughter process, etc. is different depending on the characteristics of each animal, and where the same substance, instrument, etc. is used, and the specific method of use and form of conduct vary depending on the use of the same substance, instrument, etc. Therefore, without considering the aforementioned circumstances, the mere fact that a specific slaughter method is prescribed by relevant statutes as a general slaughter method of animals or that the substance, instrument, etc. used in the slaughter is identical or similar to that prescribed by relevant statutes cannot be deemed as a suitable slaughter method for other animals.

3) As the times of, and social perception of, a specific animal has an impact on the assessment of the act of killing or causing death of, and the method of, the relevant animal, it should be considered in determining whether it is a cruel method prohibited under the instant provision. Such recognition ought to be objectively assessed in accordance with social norms from the standpoint of the average person.

2. The lower court determined that the method prohibited under the instant provision ought to be strictly construed as limited to the manner that clearly acknowledges that animals were suffering from pain, fear, stress, or a large number of pains, etc. when an animal died throughout the course. Furthermore, if there is no cruel slaughter method that is generally accepted in the relevant industry or that employees of the relevant industry are easily aware of, barring any special circumstance, barring special circumstances, it cannot be readily concluded that the animal is a cruel method, barring special circumstances where it would cause much greater pain than that prescribed by the relevant Act and subordinate statutes when the animal died throughout the course. Accordingly, the lower court determined that the evidence submitted by the prosecutor alone alone, it is difficult to readily conclude that the Defendant died of the instant provision as it was the method of killing the opening of the animal (hereinafter “instant slaughter method”). Accordingly, it is difficult to readily conclude that the Defendant died of the instant case as it was the method of killing the body.

3. However, in light of the legal principles as seen earlier, whether the pertinent slaughter method constitutes a cruel method prohibited under the instant provision ought to be determined by comprehensively taking into account the impact of the permission of the slaughter method on the national sentiment, such as respect for life of animals, characteristics of each animal, degree and duration of suffering resulting from the slaughter method, the relevant slaughter method’s degree and duration, age of the animal, social perception, etc.

Article 6 of the Enforcement Rule of the Animal Protection Act (Public Notice of the Ministry of Agriculture, Forestry and Fisheries Quarantine and Inspection Headquarters No. 2016-77) provides that animals in a state of complete saving shall be allowed only by a climatic method, and animals in a state of complete saving by a slaughter method shall be dead during clibing. On the other hand, in cases where animals are dead due to a clibing by a clibrosis, a blimatic clibr, image, cell leader, blibrosis, and heart clibrial clibrance, etc., which entails pain, can go through the process, and in such cases, the degree and duration of the pain may vary depending on the size of animals, the entire part of the body and the current value of the animals used.

Therefore, the lower court should have determined whether the Defendant’s act of killing in a cruel manner prohibited under the instant provision by comprehensively taking account of the following factors: (a) the size of the satch current that the Defendant used to slaughter the dog; (b) the time required to kill or kill the dog; (c) the specific behavior of the slaughter method using electricity, such as the slaughter place environment; and (d) internal and external symptoms that may occur to the dog as a result of the examination; and (b) the effect of permitting the slaughter method on the respect for animal life, etc.; and (c) awareness of the dog by social norms. Nevertheless, the lower court concluded that the instant slaughter method does not constitute the cruel method under the instant provision solely on the grounds as seen earlier, and acquitted the Defendant of the facts charged. In so determining, the lower court erred by misapprehending the legal doctrine on the cruel method under the instant provision; and (d) thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal assigning this error is with merit.

4. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Jae-chul (Presiding Justice)