아동학대범죄의처벌등에관한특례법위반(아동복지시설종사자등의아동학대가중처벌)
The defendant's appeal is dismissed.
1. Summary of grounds for appeal;
A. The Defendant did not neglect due care and supervision to prevent a crime in violation of the Act on Special Cases concerning the Punishment, etc. of Child Abuse Crimes A (child abuse penalty by a child welfare facility worker, etc.).
Nevertheless, the court below found the Defendant guilty on the ground of M’s false statement stating that “Priorly reported the Defendant’s abuse or circumstances” was “A,” and erred by misapprehending the legal principles, thereby adversely affecting the conclusion of the judgment.
B. The sentence imposed by the lower court on the grounds of unreasonable sentencing (5 million won of fine) is too unreasonable.
2. Judgment on misconception of facts and misapprehension of legal principles
A. Article 74 of the Child Welfare Act provides that “If a representative of a corporation, or an agent, employee or other servant of a corporation or individual commits an offence under Article 71 in connection with the business of the corporation or individual, not only shall such offender be punished, but also the corporation or individual shall be punished by a fine under the relevant provisions: Provided, That this shall not apply where such corporation or individual has not been negligent in giving due attention and supervision concerning the relevant duties to prevent such offence.”
In such a “Joint Penal Provisions”, the issue of whether a corporation, employee, etc. neglected the duty of due care or management and supervision shall be determined by comprehensively taking into account all the circumstances related to the relevant violation, namely, the legislative intent of the relevant Act, the degree of infringement of the legal interest anticipated to violate the penal provisions, the purport of the both punishment provisions concerning the relevant violation, as well as the specific form of the relevant violation and the degree of damage or result resulting therefrom, the business size of the corporation, the possibility of supervision of the offender, or the specific direction and supervision relationship
Supreme Court Decision 201No. 12, 201