(영문) 서울고등법원 2019.5.3.선고 2019노100 판결

Defendant shall be punished by a fine of KRW 2,500,000. Where the Defendant fails to pay the above fine, the Defendant shall be confined in the workhouse for a period calculated by converting KRW 100,000 into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

The defendant shall order the completion of the child abuse treatment program for 80 hours.

Reasons

1. Summary of grounds for appeal;

A. Defendant

1) misunderstanding of facts or misapprehension of legal principles

Although the defendant has contacted a part of the victim's body, the defendant's act does not objectively constitute "act of physical abuse that may harm a child's body or harm the physical health and development of the child," and it is merely natural that the defendant who spawns a child in the course of taking care of the child, and thus did not have any intention of child abuse to the defendant.

2) Unreasonable sentencing

The punishment (fine 5 million won) imposed by the court below on the defendant is too unreasonable.

(b) Prosecutors;

The sentence imposed by the court below on the defendant is too uneasible and unfair.

2. Determination

A. Judgment on the mistake of facts or misapprehension of legal principles by the defendant

1) Article 3 subparag. 7 of the Child Welfare Act provides that "child abuse" means that an adult, including a guardian, abandons a child's health or welfare, or commits physical, mental, sexual, or cruel acts that may impair the child's normal development, and abandons or neglects the child by the child's protector. Article 17 of the Child Welfare Act provides that prohibited acts against the child shall be committed against the child. Article 17 of the Child Welfare Act provides that "the act of physical abuse that causes damage to the child's body or undermining the physical health and development of the child," subparagraph 5 of Article 3 provides that "the act of emotional abuse that causes harm to the mental health and development of the child" and subparagraph 6 provides that "the act of neglecting the protection and supervision of the child or neglecting the basic protection, rearing, treatment, and education of the child, including food, clothing and shelter." Article 71(1)2 of the Child Welfare Act provides that a person who falls under Article 17 subparag. 3 of the Child Welfare Act shall be punished by imprisonment for not more than five years or a fine not exceeding five million won.

On the other hand, Article 17 of the Child Welfare Act provides that "act of emotional abuse that causes harm to the mental health and development of a child" in subparagraph 5 separate from "act of abuse that causes damage to a child's body" as a prohibited act against a child. In light of the fact that an act of causing damage to a child's body cannot be presented that it does not harm the mental health and development of the child among acts of causing damage to the child, and the language and text of the above provisions, the act of subparagraph 5 refers to an act of emotional abuse or emotional abuse that does not accompany the exercise of tangible power, but does not reach physical damage (see Supreme Court Decision 2015Do1348, Dec. 23, 2015).

In light of the definition of “child abuse” as stipulated in Article 3 subparag. 7 of the Child Welfare Act and Article 17 of the same Act, where physical abuse or emotional abuse is committed while classifying the aforementioned physical abuse and emotional abuse, the level of punishment is equally set. In light of the legislative purpose of the Act on Special Cases Concerning the Punishment, etc. of Child Welfare and Child Abuse, it is reasonable to deem that physical abuse under Article 17 subparag. 3 of the Child Welfare Act refers to an act that impedes the completeness or normal development of a child or causes bodily injury, such as physical abuse by exercising physical force. The physical damage here refers to not only the cases falling under the Criminal Act, but also the cases where the physical damage may include significant external and internal damage that does not directly affect the health, such as the significant external and internal damage that does not fall under the injury.

The criminal intent in violation of the prohibition of physical abuse does not necessarily require the purpose or intent of child abuse, but it is sufficient to recognize or anticipate the fact that it may cause the risk of undermining the completeness or normal development of the child's body or causing physical damage.

2) In light of the following circumstances acknowledged by the evidence duly adopted and examined by the court below, it is recognized that the defendant committed an act against the victimized child, which may interfere with the physical health and normal development of the victimized child, and the defendant's act is deemed to have committed the above act without permission despite the dolusence of the fact that the act is likely to interfere with the physical health and normal development of the victimized child. Accordingly, the defendant's assertion of misunderstanding of facts or misapprehension of legal principles is without merit.

① Child victims are infants before and after the age of 1, and the sense of trust of a baby with a human being leads to an opportunity to search the external world, while the perception of the external world is allowing to grasp the existence of a child, but where a stable rearing is not provided, infants may experience in impregnites, and develop negative emotionals such as pain, pain, root, decentralization, and depression. In determining whether the exercise of physical force against a baby constitutes physical abuse, the above characteristics of the baby shall be fully considered.

② In the process of working as C Child Care Teachers, the Defendant: (a) lest the head and body of the victimized child, which causes the body of the victimized child, from being shicked down with the floor below the floor; (b) on the ground that the son’s mared once with his mared and strings the mared three times, or that the victimized child’s mared with his mared and added three times, or that the victimized child K does not want to drink bread with his mared, the Defendant committed an act, such as taking the mared and haird off with his mared or mard with his mared.

③ At the time when the Defendant was initially examined the suspect at the police, he saw that he was spited only once when he was boomed to the victimized child K, but he thought that K would be drinking at the time of the snow visa. The Defendant made a statement to the effect that K was booming her hand, who was intending to drink boomed in a little amount of gold, and that she was booming with her behavior, and that she was booming against his behavior by making a statement to that effect.

④ The Defendant asserted that his act does not constitute child abuse from the time of the second interrogation of the suspect to the court. However, the Defendant voluntarily reported CCTV images at the time of receiving the second interrogation of the suspect from the police to the time of the second interrogation of the suspect, and had acted at the police. In addition, the Defendant thought that the method of raising his decoration was wrong, and stated that he would be against his behavior during his awareness.

⑤ On the other hand, the Defendant was working as a child care teacher for more than 20 years, and the investigation agency received Internet education from a child abuse prevention institution in relation to the child abuse, and stated that he received education related to child abuse from the president of the Pyeongtaek Child Care Center even during the meeting hours of the child care center.

(6) As seen earlier, the Defendant, as a child care teacher, has worked for a long time as a child care teacher, received education related to the prevention of child abuse at a lifelong child care center, and completed the education course from a specialized educational institution, the Defendant’s attitude to commit acts against the victimized children, and the Defendant’s own awareness of the problems of his/her decoration methods, and the victimized children’s recognition ability is extremely vulnerable to all other things. In light of the fact that all the victimized children are a baby with a full-time old age of 1, the Defendant could have known that his/her acts against the victimized children constituted an act that may cause harm to the child’s physical health or normal development, but it seems that such act was caused by the above act without permission.

B. Determination on the assertion of unreasonable sentencing by the defendant and prosecutor

The Defendant’s physical abuse that may interfere with the physical health and development of the infants subject to childcare over several times, such as taking the head or body of the victimized child or taking breath on the ground that the victimized child does not sleep or do not drink bread with her, by taking care of the infants under the age of 1 as infant care teachers, does not correspond to the nature of the crime and criminal circumstances. The Defendant’s emotional influence that the victimized infant was suffered by the victimized child due to the Defendant’s above act, or the mental shock and suffering of the victimized child’s parents suffered by the victimized child’s parents, and the Defendant asserts that his act up to the trial does not constitute child abuse, which is insufficient to the extent that the Defendant argued that her act does not constitute child abuse. This is the circumstances unfavorable to the Defendant.

However, the degree of the Defendant’s physical abuse against the Defendant’s victimized children is not much serious to present the opinion that the Defendant’s instant act constitutes a child abuse even the expert examination commissioner commissioned to assess whether the Defendant’s act constitutes a child abuse. It appears that the Defendant’s act in this case may not cause damage, such as undermining the completeness or normal development of the body of the victimized children, etc. due to the Defendant’s act. The Defendant has no criminal history prior to the instant crime, and the Defendant submitted a written application or agreement with the Defendant that he does not want the Defendant’s punishment by mutual consent with some parents. Although it is disputing whether the Defendant’s act constitutes a physical abuse under the Child Welfare Act from a legal point of view, it is against the Defendant’s discipline method for the victimized children from the investigation agency to the trial, and is not repeated.

In addition, comprehensively taking account of all the sentencing conditions of the defendant's family relation, age, character and conduct, environment, and circumstances after the crime, etc., the sentence imposed by the court below is too unreasonable. Therefore, the defendant's assertion of unfair sentencing is reasonable, and the prosecutor's assertion of unfair sentencing is without merit.

3. Conclusion

Therefore, since the appeal by the defendant is well-grounded, the judgment of the court below shall be reversed pursuant to Article 364(6) of the Criminal Procedure Act, and the appeal by the prosecutor shall be dismissed pursuant to Article 364(4) of the Criminal Procedure Act, and the appeal by the prosecutor shall not be dismissed as follows.

[Grounds for multi-use Judgment]

Criminal facts and summary of evidence

The summary of the facts constituting the crime recognized by this court and the summary of the evidence are the same as the corresponding columns of the judgment of the court below, and they are quoted in accordance with Article 369 of the Criminal Procedure Act

Application of Statutes

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

Article 7 and Article 10(2)12 of the Act on Special Cases concerning the Punishment, etc. of Child Abuse Crimes, Article 71(1)2 and Article 17 subparag. 3 (Selection of Fines) of the Child Welfare Act

1. Aggravation for concurrent crimes;

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

1. Article 8 (1) of the Act on Special Cases concerning the Punishment, etc. of Child Abuse Crimes;

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

1. Order of provisional payment;

1. The scope of applicable sentences under the law: a fine of KRW 750,000 to KRW 112,500,000,000;

2. The sentencing criteria do not apply because the scope of the recommended sentencing criteria according to the sentencing criteria is not set for the relevant crime.

3. Determination of sentence;

For the reasons as seen above, the sentence shall be determined as per the Disposition.