2. B

3. C.

4. D;

Attorney G (for the defendant)

2. Defendant A shall be punished by a fine of KRW 700,00, and Defendant B and D by a fine of KRW 200,000,00, respectively. In the event that Defendant A, B and D fail to pay the said fine, each of the above Defendants shall be confined to each of the above Defendants in the calendar for a period calculated by converting the said fine of KRW 50,000 for one day.

4. To order the provisional payment of an amount equivalent to the above fines against Defendant A, B, and D.

5. A. Of the facts charged in the instant case, Defendant A, B, and D’s victim J,O’s abuse on November 29, 2008, the victims’ abuse on November 29, 2008, the victims’ abuse on December 4, 2008, and Defendant A’s abuse on November 24, 2008 and the end of November 2008 are acquitted, respectively.

B. Defendant C is innocent.

The court below found the defendant guilty and acquitted the remainder of the facts charged in relation to concurrent crimes under the former part of Article 37 of the Criminal Act. Accordingly, the defendant appealed against the guilty part among the judgment of the court below, and since the prosecutor appealed against the defendant A among the judgment of the court below and the acquittal part of the judgment of the court below became final and conclusive, the scope of party members' judgment shall be limited to the guilty part

2. Summary of grounds for appeal;

A. Defendants

(1) misunderstanding of facts

Despite the absence of the fact that the Defendants were bound by the victims at the time and place of the facts charged in the judgment below, the court below accepted this part of the facts charged and found the Defendants guilty. In so doing, the court below erred by misapprehending the facts and affecting the conclusion of the judgment.

2) Legal principles

Even if the defendants were to be recognized that the victims were bound at the time and place of the original trial, this is to prevent self-injury by the victims who are the persons with severe physical disability who fall short of the capacity of separation or harmful acts against others. Thus, the defendants' act does not constitute abuse under the Criminal Act, and the defendants did not have the intent to commit abuse under the Criminal Act. Even if the defendants' act constitutes the elements of the crime of abuse under the Criminal Act, it does not constitute justifiable act under Article 20 of the Criminal Act, and even if the defendants' act constitutes the elements of the crime of abuse under the Criminal Act, the court below accepted this part of the facts charged and convicted the defendants. Thus, the court below erred by misapprehending the legal principles on the crime of abuse

B. A prosecutor (as to the conviction against Defendant A);

The punishment sentenced by the court below against Defendant A (the fine of KRW 1,00,000) is too unhued and unreasonable.

3. Determination

Before the judgment on the grounds for appeal by the Defendants and the Prosecutor, the prosecutor examined ex officio prior to the judgment of the court below on the grounds for appeal by the Defendants and the Prosecutor. Of the facts charged which the court below found as guilty, the prosecutor applied for changes in the contents of the Defendant A, B, and D victim M and N as stated in the revised indictment, and the victim victim M as stated in the revised indictment, Nov. 4, 2008, Nov. 19, 2008, Nov. 26, 2008, and Nov. 26, 2008; the victim M, N, andO as stated in the revised indictment; the victim victim M, N, andO; the victim's abuse committed on Nov. 24, 2008; and the defendant C's amendment of the indictment as stated in the revised indictment; and the part of the judgment below which the court below found the victim guilty as stated in the revised indictment No. 375, Nov. 24, 2008.

4. Conclusion

Therefore, without examining the grounds for appeal, the part of the judgment of the court below against the Defendants by its authority pursuant to Article 364(2) of the Criminal Procedure Act shall be reversed, and the following decision shall be rendered through pleadings.

Criminal facts

A around December 20, 191, Defendant A established L, a living facility for the disabled, located in the Seoul Special Self-Governing Province, and accepted and managed the disabled, as its head. Defendant B was from around 2002 to around 207, and Defendant D was working as a nursing worker in the above facility from around 8:30 to 19:00 each day.

The above L was admitted to a living facility for the disabled with mental retardation established for edification and rehabilitation. A victim M(18 years old) was admitted to a mental retardation disabled person (Grade 1) around November 7, 1992. A victim N(Grade 12) was admitted to a mental retardation disabled person (Grade 1) around September 30, 2004. The victim J (12 years old) was admitted to a mental retardation disabled person (Grade 2) around June 1, 202, and the victim J (12 years old) was admitted to a mental retardation disabled person (Grade 1) around December 208, and was protected by the Defendants until December 2008 (hereinafter referred to as "victim, victim M, N,O and collectively").

Defendant B and D: (a) the victims with severe disabilities were unable to engage in any abnormal behavior that may arise from disability, such as drinking of her excreta or using thrings after her gender, etc.; or (b) they were not easy to manage them; (c) the victims were able to care by combining them on September 2005; and (d) the line created by the victim N’s fingers or thrings around the date of 2005, which had been purchased at the above Doard, was opened to connect them to the bed bridge or safety hand; and (d) the victims were unable to take a boomed or take a boomed action, or control the victims’ abnormal behavior. Meanwhile, Defendant A, as a person responsible for the above facilities, neglected to provide guidance and supervision to the victims, even though he/she is aware of the infringement of human rights as a person responsible for the care of the above facilities, he/she neglected to do so.

1. Defendant B and D, around 19:00 around September 25, 2007, around 19:00, up to 19:00, up to the instant L severely disabled persons: (a) concealed the victim’s M/N by putting up the bareboat line with the victim’s M/N by connecting the bareboat line or safety hand with the bareboat line; and (b) explicitly allowed the above Defendants A, B, and D (hereinafter referred to as the “Defendants”) to act as above against the victim M/N, in collusion with the victim’s protection.

2. On November 4, 2008, the Defendants conspired and abused the victims by combining them in the same manner as the above Paragraph 1 while they drinked to the victims at the same place before the commencement of the performance of the amlodaliana.

3. At around 18:30 on Nov. 26, 2008, the Defendants conspired and abused the victims by the method as referred to in the above Paragraph (1) in order to attend a show of demand. The summary of the evidence was abused.

1. The statements that correspond to the statements made by the Defendants at the court of the original trial; 1. The statements that correspond to the statements made by the witnesses T and Q in the court of the original trial and the court of the original trial; 1. The statements that correspond to the statements made by the witnesses S and R in X prepared by the court of the original trial;

1. Statement of the result of verification of video materials submitted by the Jeonju MC among the sixth trial records (the part concerning video materials dated November 26, 2008);

1. Application of each existing Act and subordinate statute of 2,00 square meters (fluorred red) for galming and gluoring, and one color (fluoring (fluoring subparagraph 2);

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 273(1) and 30 (Selection of Fine) of the Criminal Code

1. Aggravation for concurrent crimes;

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Judgment on the Defendants’ assertion under Article 334(1) of the Criminal Procedure Act

1. Defendants’ assertion

Even if the Defendants were to be recognized as binding the victims at the time and place stated the facts of the crime, they were to prevent self-injury by the victims who are physically disabled persons with severe disability or harmful acts against others, and thus, the Defendants’ act does not constitute abuse under the Criminal Act, and the Defendants did not have the intent to commit abuse under the Criminal Act. Even if the Defendants’ act constitutes the elements of the crime of abuse under the Criminal Act, it does not constitute a justifiable act under Article 20 of the Criminal Act.

2. Legal principles

"Acts of abuse" as referred to in Article 273 (1) of the Criminal Code refers to acts of physical suffering or mental discrimination. Such acts of abuse merely lacks anti-human infringement on the other party's personality, and the crimes of abuse and abandonment under the provision of the Criminal Code are located in the same Chapter, at least should it reach the extent of abandonment (see Supreme Court Decision 2000Do223, Apr. 25, 200).

In addition, the intention of the crime of abuse must be recognized as having the intention of the purpose or planned abuse.

It is not sufficient to recognize or anticipate that there is a possibility or risk to bring about a result of abuse to a person who is protected or supervised by his own act, and its recognition or predictability is sufficient not only to be conclusive but also to be willful negligence.

Furthermore, Article 20 of the Criminal Act refers to an act that is permissible in light of the overall spirit of legal order, social ethics, intentional sentiment, or social norms, and thus, whether an act constitutes a justifiable act should be determined on an individual basis based on specific circumstances (see, e.g., Supreme Court Decision 2001Do5380, Jun. 10, 2004).

3. Determination

The court below and the court below acknowledged the victims through evidence duly adopted and investigated the following circumstances, i.e., the victim's room for the crime of this case is a space isolated from the general society. The victims have a very serious disability and lack of ability to reasonably express their opinions and protect themselves. The victims have been bound to rely exclusively on the protection of the victims. ② Although the victims have committed abnormal actions due to severe disorder, the defendants were not bound to control the victims during the victims' actual and abnormal actions. However, regardless of whether the victims are actually engaged in abnormal actions, the victims were bound to arbitrarily bound victims for their management convenience, and the victims, who were their guardians, were able to have been aware of the victims' mental abuse or to have been purchased at their own discretion by a medical institution or administrative agency, and it was acknowledged that the victims had been able to have been aware of the victims' mental abuse or to have been purchased at their own discretion.

In addition, in light of the aforementioned various circumstances, the Defendants’ act cannot be deemed as a justifiable act under Article 20 of the Criminal Act because it is difficult to deem that the Defendants’ act has an objective validity acceptable by social norms.

Therefore, the Defendants’ assertion is without merit.

The reasons for sentencing do not have the history of punishment for the same crime; in particular, Defendant B and D are primary offenders without criminal records; the crime of this case was committed by the Defendants due to the practical difficulties in managing the victims, and there are other circumstances to consider the situation; and the sentence shall be determined by comprehensively taking into account various circumstances, such as the Defendant’s age, character and conduct, environment, family relationship, and circumstances after the crime.

Parts of innocence

1. Summary of the facts charged

A around December 20, 191, Defendant A established L, a living facility for the disabled in the former North Korean territory, and accepted and managed the disabled as its head. From around 2002, Defendant B and C, Defendant D, from around 2007 to around 19:00 each day, Defendant B and D, from around 8:30 to around 19:00 each day, and Defendant C had approximately 20 persons with severe disabilities from around 19:00 to 8:00 the following day.

The above L is a disabled person established for the purpose of edification and rehabilitation. The victims (18 years old) entered the victim's mental retardation (class 1) around November 7, 1992. The victim N(12 years old) entered the victim's mental retardation (class 1) around September 30, 2004, and the victim's J (12 years old) entered the victim's mental retardation (class 2) around June 1, 202 with the victim's mental retardation (class 1), and it is difficult for the victims (class 20 years old) to thoroughly control or control the victims' actions by putting them on the victim's mental retardation (class 1), and it is difficult for the victims to have been protected by the victim's care, D, and C to thoroughly control the victims' actions, such as 9 years old, or 2 years old, by putting them on the victim's mental retardation to the victim's care room or 5 years old.

A. Joint principal offenders committed by Defendant A, B, and D

1) At around 19:00 on September 25, 2007, Defendant B and D: (a) sensed the victim J,O’s booms, or kykes made up of the victim J, O’s kykes, and (b) combine the victim J,O by linking the kykes or safety kykes in the above kykes; and (c) knowingly, Defendant A knowingly permitted the above Defendants to act as above to the victim J, J, and 0. Accordingly, Defendant A, B, and D abused the victim J, and O under their care.

2) The Defendant A, B, and D conspired and abused the victims in the same manner as the above-mentioned A-1 until they worked in the morning while leaving a normal place to attend the new wall worship at around 05:30 on November 29, 2008.

3) Defendant A, B, and D conspired with each other and abused the victims by combining them in the same manner as the above-mentioned A’s 15:00 hours from around December 4, 2008 to around 07:0, around 12:00, around 17:00 to around 18:20, and around around 16:0 to around 16:00, during which they drink or move back to 15:0 to 16:00.

B. Defendant A and C’s joint criminal conduct

1) At around 05:30 on November 24, 2008, Defendant C, at the above L without severe disabilities, boomed the victims by putting up the braces created by the victim’s hairs or handouts, and connecting the above bareboats with the bareboats or safety handouts, and Defendant A implicitly allowed the victims to do the above acts. Accordingly, Defendant A and C abused the victims under their care in collusion.

2) Defendant A and C conspired with each other and abused victims, such as the foregoing Section B-1, around 4:00 at the end of November 2008.

2. Determination

Although the Defendants were temporarily bound to prevent self-injury or harmful acts of the victims only when necessary, the Defendants asserted that there was no fact that they had been bound by the victims at the time and place specified in the facts charged.

Therefore, first of all, there are two statements in the investigative agency and the court of the court below as to whether the defendants were booming the victim at the time and place of the above facts charged, and there are two statements in the investigation agency and the court of the court below, and one (No. 1), two (No. 1), one (No. 2), one (No. 1) for the purpose of shot-maring and shot-maring, and two (No. 2) for the purpose of shot-maring and shot-maring in the court of the court below.

First, some statements made by the Defendants in the investigative agency and the court below are necessary to prevent the victims from self-injury or harmful act. However, it is difficult to recognize that the contents of the statements were identical to the date, time, place, etc. stated in the above facts charged. (No. 484 of the trial record) In addition, since the Defendants specifically disputed the time, place, etc. in which the victims were integrated from the court below to the court below, it is insufficient to recognize that the Defendants bound the victims at the time and place of the above facts charged.

다음으로 당심 제6회 공판조서 중 전주 MBC가 제출한 영상자료에 대한 검증결과의 기재에 의하면, 전주 MBC가 제출한 영상자료 중 위 공소사실 기재 일시, 장소에 촬영된 듯한 것으로는, 2008. 11. 24.자 영상과 2008. 11. 29.자 영상이 있는바, 이 중 2008. 11. 24.자 영상에는 손목 또는 발목이 끈으로 묶인 채 잠들어 있는 남자 4인과 여자 2인이 현출되어 있고, 2008. 11. 29.자 영상에는 양손이 뒤로 묶여 있는 사람과 발이 묶여 있는 사람이 서로 얽혀 있는 장면이 현출되어 있음을 알 수 있다. 그러나 위 영상을 촬영한 증인 Q은 원심 및 당심에서 위 각 영상을 촬영한 일자가 위 영상자료 원본에 현출된 촬영일자(원본을 복사한 CD영상에는 촬영일자가 지워져 있다)인 2008. 11, 24,과 같은 달 29.인지 여부는 기억이 나지 않는다고 진술하고 있고, 증인 P 또한 원심과 당심에서 자신은 전주 MBC 보도국 기자로서 Q으로부터 위 영상자료의 원본을 건네받은 다음 위 영상에 현출된 장소가 L이 맞는지 여부를 확인하려고 L에 방문했을 뿐 위 영상이 실제로 촬영된 일자는 알지 못한다는 취지로 진술하고 있으며, 달리 위 각 영상이 실제로 촬영된 일자가 2008. 11. 24.과 같은 달 29.임을 인정하기에 충분한 자료가 없다. 오히려, 위 각 영상자료의 원본에는 촬영일자가 2008. 11. 20., 같은 달 24., 같은 달 26. 및 같은 달 29.로 된 영상이 수록되어 있는데, 증인 Q은 원심에서는 2008. 11. 25. 05:30경, 같은 달 26. 05:30경과 17:30경 도합 3회에 걸쳐 위 영상을 촬영하였다고 진술하였고(공판기록 681면), 당심에서는 일자불상 낮에 1회, 일자불상 새벽 등에 2회, 2008. 11. 26. 저녁 1회 등 총 3일간 도합 4회에 걸쳐 L을 방문하여 위 영상을 촬영하였다는 취지로 진술하고 있어, 위 영상자료의 원본에 수록된 영상 중 Q의 진술이 일관된 2008. 11, 26. 영상(위 영상에 현출된 TV방송 내용에 비추어 볼 때, 그 영상은 같은 날 저녁 18:30경 촬영된 것으로 보인다)을 제외한 나머지 영상들은 그 촬영일자가 실제 촬영일자와 다를 가능성이 높다. 따라서 당심 제6회 공판조서 중 전주 MBC가 제출한 영상자료에 대한 검증결과의 기재만으로는 피고인들이 2008. 11. 24. 05:30경 및 2008. 11. 29. 05:30경을 비롯한 위 공소사실 기재 일시, 장소에서 피해자들을 묶어 두었다고 볼 수 없다.

In addition, it is not enough to recognize that the Defendants combined victims at the time and place specified in the facts charged, solely on the basis of each of the statements made by P and Q in the investigative agency, in the original trial and in the court of original trial, in the witness R and U, in the court of original trial, in two (No. 1) and one (No. 2) for the purpose of salvbing shot (profing) and one (No. 2).

In addition, the evidence submitted by the prosecutor alone is insufficient to prove the abuse of the Defendants by combining victims at the time and place specified in the above facts charged, and there is no other sufficient evidence to acknowledge the facts charged.

Therefore, among the facts charged of this case, the facts charged of this case include the victim J, B, and D victim J, andO on September 25, 2007; the victims of abuse on November 29, 2008; the victims of abuse on December 4, 2008; the fact of abuse to victims M, N, andO on November 24, 2008; the fact of abuse to Defendant A on November 24, 2008; and the part to Defendant C on November 21, 2008 constitutes a case where there is no proof of criminal facts, and thus, the defendant is acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act.

It is so decided as per Disposition for the above reasons.

Judges fixed-type case

Judges Cho Jin-jin

Pro-friendly part is different from the facts charged that the court below found guilty.

2) The prosecutor modified the facts charged only with the remainder of the facts charged that the court below found guilty, excluding this part of the facts charged.

Since the public prosecution against this part cannot be deemed to have been revoked (Article 255(1) of the Criminal Procedure Act), this part is still subject to the ruling of the competent court.

A person shall be appointed.

A person shall be appointed.