(영문) 서울중앙지방법원 2018.7.27. 선고 2018고합374 판결

The defendant orders the employment restriction to institutions, etc. related to children and juveniles for three years.The defendant is not guilty of violating the Child Welfare Act (child abuse) against victims C among the facts charged in this case.

Reasons

Criminal facts

1. Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes;

A. On February 2016, the Defendant: (a) was a victim E (here, 12 years of age at the time) who is a friendly parent in the Defendant’s house located in Eunpyeong-gu Seoul Metropolitan Government; (b) and (c) had a her chest by inserting his her her panty in the brogate of the victim himself/herself; (c) had the victim’s her panty by forcing the victim’s grandchildren; and (d) had the victim’s her panty in his/her panty, and (e) had the son’s son and son’s son’s son, even though the victim was deprived of her son’s son and son’s son

B. At around 23:00 on March 2, 2018, the Defendant, while displaying TV at the Defendant’s home of Mapo-gu Seoul, 106 Dong 905, 106, and 905, committed an indecent act by drinking the chest above the clothes of the victim E (the age of 14 years at that time) who was on the back of the Plaintiff’s own.

In this respect, the defendant committed an indecent act on the victim's kinship on two occasions.

2. Violation of the Child Welfare Act (child abuse);

A. On the grounds that the victim H (at the time nine years of age) who was an son at the Defendant’s house at Eunpyeong-gu Seoul and A Dong 201 around A around 2014 was late at the home, the Defendant used Paris debt and assaulted the Victim’s hand floor by taking back the Defendant’s hand.

B. On March 7, 2018, the Defendant, at the Defendant’s house of Eunpyeong-gu Seoul Metropolitan Government and A201, she saw the victim H (at that time 10 years of age), who was her children, as her hand, her hand at approximately six times, and assaulted the victim’s her bucks and side her bucks by taking time. Around March 7, 2018, the Defendant assaulted the victim her head at the Defendant’s house of Mapo-gu Seoul Metropolitan Government F apartment 106 Dong 905, 11 years of age, on the ground that her head was not arranged, and her head was her head at approximately two times, and her head was slick by her slick cleaning.

Accordingly, the Defendant committed physical abuse that may harm the physical health and development of victimized children.

Summary of Evidence

1. Partial statement of the defendant;

1. stenographic records of the victim E statement, stenographic records of the victim H statement, or stenographic records of the victim's statement;

1. Application of the victim H statement recorded CDs, victim I statement recorded CDs-related Acts and subordinate statutes

1. Article applicable to criminal facts;

Article 5(2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (a point of indecent act by force by blood relation), Article 71(1)2 and Article 17 subparag. 3 of the Child Welfare Act (a point of child abuse and choice of imprisonment);

Articles 37 (former part of Article 37, Article 38 (1) 2, and 50 of the Criminal Act [Aggravation of concurrent crimes against the crime prescribed in the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Indecent Act by Indecent Act in Relation of Relatives)]

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following consideration for the reasons for sentencing):

1. Order to complete programs;

The main sentence of Article 21(2) of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. Article 3 of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse ( January 16, 2018), Article 56 (1) of the Act on the Protection of Children and Juveniles against Sexual Abuse;

1. Exemption from an order for disclosure and notification;

In full view of the proviso to Article 49(1) and the proviso to Article 50(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (the disclosure and notification order of registered information may have a significant impact on the defendant, and there is no record of punishment for the same sex offense against the defendant, and the execution of imprisonment with prison labor and registration of personal information can be seen to have the effect of preventing re-offending, and other circumstances, such as the defendant's age, family relation, social relationship, the profits and the prevention effect expected by the disclosure or notification order, disadvantage and side effects of the defendant's personal information shall not be disclosed or notified. It is reasonable to deem that there are special circumstances to be a special circumstance).

1. Summary of the assertion

Although the Defendant committed assault against H and I, as stated in paragraph (2) of the facts charged, the Defendant’s act, as stated in this part of the facts charged, constitutes “physical abuse that may harm the health and development of the body” as stipulated in Article 17 subparag. 3 of the Child Welfare Act, as it was for the purpose of punishing H and I, and the Defendant did not have the intent of abuse against H and I, and such assault does not reach the degree of abuse against H and I.

subsection (b) of this section.

2. Determination

A. Article 3 subparag. 7 of the Child Welfare Act provides that "child abuse" means that an adult, including a guardian, is "a person doing physical, mental, or sexual violence or cruel acts that may harm a child's health or welfare or impede normal development of a child, and a child's guardian abandons or abandons the child." Article 17 subparag. 3 of the same Act provides that "the act of physical abuse that may harm a child's body or injure a child's physical health and development" is prohibited. Meanwhile, the crime of abuse under the Criminal Act is interpreted to be limited to a mere anti-human infringement on the other party's personality, and at least to the extent that it is limited to abandonment. However, the crime of abuse under the Criminal Act is protected by the protection and protection of the child's health and welfare (Article 1 of the Child Welfare Act), and the child welfare Act protects only the child under 18 years of age (Article 3 subparag. 1 of the Child Welfare Act), and it is more reasonable to interpret the concept of abuse to be protected than the concept of sexual abuse under the Child Welfare Act.

In light of the above legislative purpose of the Child Welfare Act, the level of intellectual and physical development of the general child, and the fact that it is not practically easy to accurately confirm whether physical abuse has impeded physical health and development of the child, etc., it is reasonable to view that the "act of physical abuse" as stipulated in Article 17 subparagraph 3 of the Child Welfare Act includes not only the case where the physical health and normal development of the child has been impeded, but also the case where the risk or possibility of causing such a result has occurred.

In the end, "physical abuse" under Article 17 (3) of the Child Welfare Act is not necessarily a purpose or intent of child abuse, but a possibility of causing harm to the physical health and development of a child or an act of danger itself is sufficient to recognize or anticipate the possibility of causing harm to the physical health and development of a child.

B.1) First of all, as to the violation of the Child Welfare Act (child abuse) against H around 2014, the health team, and the following facts and circumstances acknowledged by the evidence duly admitted and investigated by this court, namely, ① the Defendant’s assault appears to have suffered physical damage, such as serious satisfying, etc. due to the Defendant’s severe satisfying, etc.; ② the Defendant, while putting the victimized child’s hand floor of the victimized child at least 10 times in Paris bonds at the time when she takes a bath at the time, up to Paris bonds, up to the Paris bonds. The Defendant appears to have exceeded the degree necessary for the proper discipline of H, and ③ the number of times and intensity appears to have exceeded the degree necessary for the proper discipline of H; ③ the Defendant’s physical and mental pain appears to have been caused due to the Defendant’s exercise of his tangible power; ④ The Defendant’s act is sufficient to acknowledge that this part of the Defendant’s physical abuse constitutes an act of abuse of the body of the defense counsel.

2) With respect to the violation of the Child Welfare Act (child abuse) against H around winter in 2015, the health team, the following facts that can be recognized by the evidence duly adopted and investigated by this court, i.e., the Defendant’s act of this part, i.e., the Defendant’s hand, at around six times, at the time, appears to have been in excess of the degree necessary for the appropriate landing of H in light of the tool, method, frequency, age of the victim, etc. of the assault, and ii) the Defendant’s act appears to have been in the investigative agency to have been in danger of physical and mental pain due to the assault. In light of the above facts, it is sufficient to recognize that the Defendant’s physical and mental harm is likely to harm the physical health and development of the child, and that the Defendant’s act constitutes an act of physical abuse with physical harm or danger, and it is reasonable to deem that this part of the Defendant’s defense counsel was not accepted.

3) Regarding the violation of the Child Welfare Act (child abuse) against I, it is sufficient to recognize that the Defendant’s act constitutes a physical abuse that causes damage to the child’s body, and it is reasonable to deem that the Defendant was aware of such fact, in light of the following circumstances: (a) I appears to have suffered physical or mental harm due to the Defendant’s assault; (b) I appears to have caused considerable physical or mental harm due to the Defendant’s assault; and (c) I appears to have caused considerable physical or mental harm due to the Defendant’s assault to a child who is only 11 years old at the time; and (d) I appears to have more social protection for the development of perfect and harmonious personality with a child of Grade 3 intellectual disability than ordinary children.

1. Reasons for sentencing: Imprisonment with prison labor for a period of two years and six months from June to June 22

2. Scope of recommended sentences according to the sentencing criteria;

(a) Crimes of violating the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes;

[Determination of Type] The crime of indecent act by force (subject to the age of 13 or more) on the grounds of the general standard on sexual crime, the second type of the crime of indecent act by force (a indecent act by force or by force, such as by force or by force or by force

【Special Convicted Person】

[Scope of Recommendation] Basic Field, Imprisonment for 2 years to 5 years

(b) Each crime of violating the Child Welfare Act (child abuse);

[Determination of Punishment] Types 2 (Serious Abandonment, Abuse) of the General Criteria for Cruing, Aband Abuse of Arrest, Confinement, Abandonment, or Abuse

【Special Convicted Person】

[Extent of Recommendation] Basic Field, 6 months to 1 year and 6 months. The scope of Recommendation according to the standards for handling multiple crimes: Imprisonment for 2 years and 6 months to 8 years (the upper limit of the 1 crime + 1/2 of the upper limit of the 2 crime + 1/3 of the upper limit of the 3 crime)

3. Determination of sentence;

The following circumstances and the defendant's age, character and conduct, environment, family relationship, motive, means and result of the crime, and various sentencing factors specified in the arguments in the instant case, such as the circumstances after the crime, shall be determined as the order.

○ Unfavorable Circumstances: Each of the instant crimes committed by the Defendant, who is his minor (the 12 years of age and 14 years of age at the time of the commission of the instant crime), by indecent act by force, I, and I on two occasions, and committed physical abuse against the child, and the nature of the crime is not somewhat weak. The victim E appears to have caused considerable mental pain and sexual humiliation due to each of the instant indecent acts by force, and the victim H and I want to be punished against the Defendant. The victim H and I also seem to have experienced mental pain due to each of the instant indecent acts by force.

In light of the favorable circumstances of ○: (a) the Defendant recognized his mistake from an investigative agency to this court; (b) the Defendant has no record of criminal punishment against the Defendant; (c) the Defendant has supported the aged mother and victims who need regular outpatient treatment while working as an employee of a gas station; and (d) long-term detention of the Defendant is likely to involve excessive economic difficulties for his/her dependents.

Where a conviction becomes final and conclusive with respect to a crime of violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Indecent Act in Relatives) in each judgment on a sex offense subject to registration, the accused is a person subject to registration of personal information pursuant to Article 42 (1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and

A competent agency is obligated to submit personal information.

Meanwhile, with respect to the defendant, a sex crime which causes the registration of personal information under the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes and other crimes are concurrent pursuant to Article 37 of the Criminal Act and the punishment is determined pursuant to Article 38 of the Criminal Act. The period for registering personal information resulting therefrom is 15 years pursuant to Article 45(1)3 and (2) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes. However, in full view of the nature of each of the crimes in this case and the severity of the crimes, it is not recognized that the period for registering personal information of the defendant is unreasonable, and therefore,

The acquittal portion

1. Summary of the facts charged

On March 7, 2018, the Defendant assaulted the victim C at around two occasions on the ground that the Defendant’s home of Mapo-gu Seoul Metropolitan Government F apartment 106, 905, the Defendant’s wife C (here, 8 years of age) was not able to take part in reorganization.

2. According to the judgment, the defendant's partial statement, and the victim I's stenographic records, the defendant can be found to have taken approximately twice the head of C at the same time and place as the stated in this part of the facts charged.

However, even if the concept of abuse under the Child Welfare Act is interpreted more broadly than the concept of abuse under the Criminal Act, it cannot be deemed that the exercise of all tangible force against a child is included in the concept of abuse under the Child Welfare Act, and it is reasonable to deem that the exercise of such tangible force constitutes physical abuse against a child under the Child Welfare Act in cases where there is possibility or risk that the exercise of such tangible force may cause harm to the physical health and development of a child.

However, in full view of the following circumstances that can be recognized by the evidence duly adopted and investigated by the court, namely, the Defendant’s assault in this part of the facts charged seems to have not significantly exceeded the permissible level ordinarily in the course of raising a child, and C appears to have a positive and close attitude toward the Defendant by stating that no assault was committed against the Defendant as stated in the facts charged at the investigative agency, including the Defendant’s statement that he/she would have tried to live together again with the Defendant, and the evidence submitted by the Prosecutor alone is insufficient to deem that the exercise of physical abuse under the Child Welfare Act against C, such as the document written in the facts charged, has reached the exercise of physical abuse under the Child Welfare Act against C, and there is no other evidence to acknowledge this otherwise.

Conclusion

Therefore, this part of the facts charged is judged not guilty in accordance with the latter part of Article 325 of the Criminal Procedure Act because there is no proof of crime.