[1] The method to determine whether the provision can be retroactively applied if there is no explicit transitional provision regarding retroactive application when establishing the Special Provision that suspends, extends, or excludes the statute of limitations

[2] The legislative intent of Article 34 of the Act on Special Cases concerning the Punishment, etc. of Child Abuse Crimes, which is a provision suspending the statute of limitations for a child abuse crime, / Whether Article 34(1) of the same Act intends to suspend the progress of the statute of limitations that has not been completed in the future from a certain requirement (affirmative), and whether it is applicable to a child abuse crime, the statute of limitations of which has not yet expired (affirmative)

[1] If there is no explicit transitional provision regarding retroactive application while establishing the Special Provision that suspends, extends, or excludes the statute of limitations, there is no universal principle as to whether the provision can be retroactively applied, and the principle of due process and the principle of retroactive prohibition should be determined carefully to the extent that it does not undermine the ideology of the rule of law, including the principle of legal stability and trust protection, based on the spirit of Articles 12(1) and 13(1) of the Constitution that declared the principle of due process and the principle of retroactive prohibition.

[2] Article 2 Subparag. 4(l) of the Act on Special Cases concerning the Punishment, etc. of Child Abuse Crimes (established by January 28, 2014 and enforced September 29, 2014; hereinafter “Child Abuse Punishment Act”) provides for the following provisions to protect children and grow up as healthy members of the society by providing for special cases concerning the punishment of child abuse crimes. Article 2 Subparag. 4(l) of the Child Welfare Act provides for “an act of physical abuse which causes damage to children or undermines physical health and development,” as one of child abuse crimes under Article 71(1)2 and Article 17 Subparag. 3 of the Child Welfare Act. Article 34 of the same Act provides for “The statute of limitations of a child abuse crime shall commence from the date on which the child victim reaches the age of majority,” and Article 252 of the same Act provides that “The child abuse crime shall be punished against a child abuse crime under Article 18(1) of the Child Welfare Act, including the Child Abuse Act, prior to the expiration of the statute of limitations.”

The Child Abuse Punishment Act does not have any explicit transitional provision regarding the retroactive application of Article 34(1). However, in light of the language and purport of the provision, the legislative purpose of the Child Abuse Punishment Act, and the legal doctrine regarding the enactment and class of the Special Provision that suspends the statute of limitations, this provision suspends the progress of the statute of limitations that has not been completed toward the future from a certain requirement. As such, it is reasonable to view that such provision also applies to a crime of child abuse for which the statute of limitations has not yet expired, even if the criminal act was terminated at September 29, 2014, which was the enforcement date, but the statute of limitations has not yet

Meanwhile, Supreme Court Decision 2015Do1362, 2015Do19 Decided May 28, 2015 is related to Article 20(3) of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (wholly amended by Act No. 11556, Dec. 18, 2012) that provides for the exclusion of the statute of limitations, and does not interfere with the interpretation and application of Article 34(1) of the Child Abuse Punishment Act, which is merely permanently excludes the application of the statute of limitations from the application of the statute of limitations, but merely suspends the progress of the statute of limitations in the future.

[1] Articles 12(1) and 13(1) of the Constitution of the Republic of Korea / [2] Articles 1, 2 subparag. 1, 4(l), and 34(1) of the Act on Special Cases Concerning the Punishment, etc. of Child Abuse Crimes, Addenda (amended by Act No. 1156, Dec. 18, 2012); Articles 3 subparag. 1, 17 subparag. 3, and 71(1)2 of the Child Welfare Act; Articles 20(3) (see current Article 21(3) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (wholly amended by Act No. 1156, Dec. 18, 2012); Article 252 of the Criminal Procedure Act

[1] [2] Supreme Court Decision 2015Do1362, 2015 Jeondo19 decided May 28, 2015 (Gong2015Ha, 933) / [2] Supreme Court Decision 2016Do7273 decided September 28, 2016 (Gong2016Ha, 1650)

Defendant

Defendant and Prosecutor

Law Firm LLC (LLC, Attorneys Lee Il-chul et al., Counsel for the defendant-appellant)

Seoul Western District Court Decision 2018No1659 decided February 13, 2020

Of the judgment of the court below, the part on the violation of the Child Welfare Act (child abuse) and the part on conviction listed in [Attachment 1-10] and the part on conviction shall be reversed, and this part of the case shall be remanded to the Seoul Western District Court. The prosecutor’s remaining appeal

1. The decision shall be made ex officio;

A. The lower court determined that the statute of limitations for the part regarding Nonindicted 1’s violation of the Child Welfare Act (child abuse) against Nonindicted 1, as indicated in [Attachment 2] List of Crimes Nos. 1, 5, 6, 7, 9, and 10 of the lower judgment was expired

B. The summary of this part of the facts charged is as follows.

On March 2, 2008, the Defendant adopted full adoption of Nonindicted Party 1 (date of birth omitted) with the victim Nonindicted Party 2, who is a married couple, and between Nonindicted Party 2 and the Jeonnam. On March 2, 2008, the Defendant committed emotional abuse, including assaulting the victim Nonindicted Party 1’s face by hand on the ground that the victim Nonindicted Party 1 (age 5 years old at the time) was refusing and driving together with the Defendant, etc. on the ground that the victim Nonindicted Party 1 (age 1 omitted), who was his residence of Nonindicted Party 2, was living together with the Defendant, and committed an act of emotional abuse that may inflict physical harm on the child’s body or harm the physical health and development of the child, and that caused harm to the mental health and development of the child.

C. Such an act is an offense falling under Article 71(1)2 and Article 17 subparag. 3 and 5 of the former Child Welfare Act (Amended by Act No. 12361, Jan. 28, 2014); and the statutory penalty is “a imprisonment with labor for not more than five years or a fine not exceeding 30 million won” under Article 249(1)4 of the Criminal Procedure Act, and the statute of limitations period is seven years after the criminal act ends. The instant indictment was instituted on October 18, 2017.

If there is no explicit transitional provision regarding retroactive application while establishing the Special Provision for the Suspension, Extension, and Exclusion of Prescription for Public Prosecution, there is no general principle as to whether the provision can be applied retroactively, and it should be carefully determined to the extent that it does not undermine the ideology of the rule of law, including the legal stability and the principle of protecting trust, based on the spirit of Articles 12(1) and 13(1) of the Constitution that declares the due process of law and the principle of prohibition of retroactive application (see Supreme Court Decision 2015Do1362, May 28, 2015).

The Act on Special Cases Concerning the Punishment, etc. of Child Abuse Crimes (amended by Act No. 1207, Jan. 28, 2014; hereinafter “Child Abuse Punishment Act”) provides for the following provisions in order to protect children and grow them into healthy members of the society by providing for special cases concerning the punishment of child abuse crimes. Article 2 Subparag. 4 (l) of the Child Welfare Act provides for “the act of physical abuse, which causes physical harm to children or undermines physical health and development,” as one of child abuse crimes under Article 71(1)2 and Article 17 Subparag. 3 of the Child Welfare Act. Article 34 of the same Act provides for “The statute of limitations period of a child abuse crime shall run from the date on which the child abuse crime reaches the age of majority,” and the Addenda provides for “The purpose of this Act is to protect the child abuse crime from the child abuse crime under Article 18 of the Child Welfare Act, including the Act on the Punishment, etc. of Child Abuse, prior to the expiration of the statute of limitations period.”

The Child Abuse Punishment Act does not have any explicit transitional provision regarding the retroactive application of Article 34(1). However, in light of the language and purport of the provision, the legislative purpose of the Child Abuse Punishment Act, and the legal doctrine regarding the enactment and class of the Special Provision that suspends the statute of limitations, this provision suspends the progress of the statute of limitations that has not been completed toward the future from a certain requirement. As such, it is reasonable to view that the provision also applies to a crime of child abuse against which the statute of limitations has not yet expired even after the criminal act was completed at September 29, 2014, which was the enforcement date (see Supreme Court Decision 2016Do7273, Sept. 28, 2016).

Meanwhile, Supreme Court Decision 2015Do1362, 2015Do19 Decided May 28, 2015 is against Article 20(3) of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (wholly amended by Act No. 11556, Dec. 18, 2012) that provides for the exclusion of the statute of limitations, and does not interfere with the aforementioned interpretation and application of Article 34(1) of the Child Abuse Punishment Act, which does not permanently exclude the application of the statute of limitations, but merely suspends the progress of the statute of limitations in the future.

D. The following conclusion is derived in light of the above legal doctrine.

As to the acts indicated in this part of the facts charged, the statute of limitations has not yet expired at the time when Article 34(1) of the Child Abuse Punishment Act enters into force, and the statute of limitations has not yet expired for seven years. It is evident that the victim non-indicted 1, who was the (date of birth omitted) born until October 18, 2017, who was prosecuted in the instant case, did not reach the age of majority and the statute of limitations has not yet expired. Accordingly, this part of the indictment does not constitute “when the statute of limitations has expired” as stipulated in Article 326 subparag. 3 of the Criminal Procedure Act.

Nevertheless, the lower court acquitted the Defendant on the charge of this part of the facts charged on the ground that Article 34(1) of the Child Abuse Punishment Act does not apply and the statute of limitations expired. The lower court erred by misapprehending the legal doctrine on the interpretation and application of Article 34(1) of the Child Abuse Punishment Act and the Addenda, thereby adversely affecting the conclusion of the judgment

2. Prosecutor's grounds of appeal are examined.

A. Public prosecution rejection portion

The summary of this part of the facts charged is as follows. The Defendant committed emotional abuse, in the Defendant’s house of Mapo-gu Seoul ( Address 2 omitted) on April 2008, by taking the victim Nonindicted Party 1’s face at the victim Nonindicted Party 1’s face on the grounds that the victim Nonindicted Party 1’s voice was written and the vote was not revealed, as shown in [Attachment 2] Nos. 2, 3, 4, and 8 of the List of Crimes 2, and committed emotional abuse that may injure the child’s physical health and development, and that may injure the child’s mental health and development.

For the following reasons, the lower court determined that it was difficult to view that this part of the facts charged was sufficiently specified to the extent that it does not interfere with the Defendant’s exercise of the right to defense. ① It is abstractly stated in the facts charged that “an assault was committed by Nonindicted 1 by hand or by hand,” and it is not possible to make any judgment on whether to grant abuse because the specific contents of the crime are not stated, such as the means and method of the assault, and the part and frequency of the assault, etc.

However, the lower court’s judgment is difficult to accept for the following reasons. The instant facts charged specifically specify the date and place of crime, and specify a rough method of crime, and the Defendant only contests that the Defendant and the victim were residing in a place other than the above address at the time. Therefore, the facts charged were sufficiently specified, and it cannot be deemed that the subject of the trial is unclear, or that the Defendant’s defense was difficult.

Even if it is not so, if the entry of an indictment is unclear, the court shall order the prosecutor to attend the indictment in accordance with Article 141 of the Regulations on Criminal Procedure, and thereafter, the public prosecutor must dismiss the public prosecution for an unspecified reason as to the facts charged when it is not clear (see Supreme Court Decision 82Do293, Jun. 14, 1983). The lower court dismissed ex officio the public prosecutor ex officio on the ground that it is difficult to deem that the facts charged was immediately specified without ordering the prosecutor to attend as to the specification of the facts charged. The lower court erred by misapprehending the legal doctrine on the specification of the facts charged or failing to exhaust all necessary deliberations, which affected the conclusion of the judgment.

B. Part of habitual assault and Child Welfare Act (Habitual child abuse)

Of the facts charged in the instant case, the lower court acquitted the Defendant on the grounds that the part relating to habitual assault and violation of the Child Welfare Act (Habitual child abuse) was not recognized. Examining the reasoning of the lower judgment in light of relevant legal principles and records, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on “Habitual assault” in the crime of habitual assault and violation of the Child Welfare Act (Habitual child abuse)

C. The acquittal (excluding the acquittal of Nonindicted 1, ex officio, for the violation of the Child Welfare Act (child abuse))

Of the facts charged in the instant case, the lower court sentenced Nonindicted 2 to acquittal by deeming that the statute of limitations expired with respect to the part regarding Nonindicted 2’s assaults Nos. 1-9 in [Attachment 1] of the lower judgment regarding the instant charges. Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err by exceeding the bounds of the principle of free evaluation

D. The portion of not guilty of assault and Child Welfare Act (child abuse)

Of the facts charged in the instant case, the lower court acquitted Nonindicted Party 2 of the charge by deeming that there was no evidence of crime regarding the assault listed in [Attachment 10] No. 12, 14, 16, and 19 of the lower judgment against Nonindicted Party 1 and the part regarding the violation of the Child Welfare Act (child abuse) indicated in [Attachment 2] List No. 12, 14, 16, and 19 of the lower judgment. Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err by exceeding the bounds of the principle

3. The defendant's grounds of appeal are examined.

The lower court convicted Nonindicted 2 of the part of the lower judgment against Nonindicted 1 as to the assault listed in [Attachment 1] 1-21 of the crime sight table Nos. 11-21 of the lower judgment, child abuse listed in Attached Table 2 of the lower judgment against Nonindicted 1, and the violation of the Child Welfare Act (child abuse) against Nonindicted 3. Examining the reasoning of the lower judgment in light of the relevant legal doctrine and evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the determination of the credibility of physical and emotional abuse and statements.

4. Of the judgment below, the part on the violation of the Child Welfare Act (child abuse) stated in [Attachment 1-10] of the judgment below should be reversed. However, since each of the above reversed parts is concurrent crimes with the remaining guilty parts under the former part of Article 37 of the Criminal Act, one sentence should be sentenced if it is found guilty as a result of the deliberation on the facts charged for the reversal portion. Therefore, the part on conviction among the judgment below and the part on the dismissal of prosecution and acquittal of prosecution against the Child Welfare Act (child abuse) in [Attachment 1-10]

Of the judgment of the court below, the part against the Child Welfare Act (child abuse) and the part guilty in the annexed 1-10 table Nos. 1-10 of the judgment below are reversed, and this part of the case is remanded to the court below for a new trial and determination. The prosecutor's remaining appeals are dismissed as it is without merit. It is so decided as per Disposition by

Justices Lee Dong-won (Presiding Justice)