[1] Whether “a contractual obligation” under Article 271(1) of the Criminal Act concerning the crime of abandonment is limited to a case where “a contractual obligation” provides assistance to the principal contractual obligation (negative) and the standard for determining whether a “a contractual assistance obligation” exists

[2] The case affirming the judgment below which acknowledged the crime of death resulting from abandonment on the ground that the defendant is obligated to take necessary measures to prevent harm to the life or body of the victim, in case where the defendant was prosecuted as a preparatory measure on his principal store by neglecting the victim who continuously drinked and breatheding the drinking while serving in the main store without having to do so, and caused death due to low physical temperature, etc.

[1] Article 271(1) of the Criminal Code concerning the crime of abandonment provides that the subject of the act is “a person legally or under contractual obligation to protect a person who needs assistance due to labor, disease or other circumstances.” Here, “ contractual obligation” is not always limited to cases where the principal duty under a contract is provided with assistance, such as nurse or nurse, and does not exclude cases where the other party must assist with the other party with due care and care for the body or life of the other party so that the purpose of the contractual relationship can be achieved through the interpretation of the contract. However, in the case of the crime of abandonment, unlike the civil area where liability for damages is mainly at issue as the effect of the violation of the duty, the criminal sanctions against the personal liability of the party is a matter of consideration. Considering that the civil assistance obligation or protection obligation as above is acknowledged, it cannot be said that the “ contractual obligation” under Article 271 of the Criminal Code is established as a matter of course, and whether there is a need to provide the pertinent contractual relationship, the nature and contents of the contract in question and other relevant factors before and after the formation of the contract or the relevant Article.

[2] In a case where the Defendant was indicted on the ancillary charge of causing death by neglecting the victim who continuously drinks and spawn while drinking in his/her main place of customer with no one kising, leaving the victim in his/her main place, and causing death by using low physical temperature, etc., the case affirming the judgment below which acknowledged the crime of death by abandonment on the ground that the Defendant was obligated to take necessary measures, such as moving the victim into his/her main place of customer, leaving him/her in his/her nearby in order to prevent harm to the victim's life or body as the main place of customer, leaving him/her in his/her main place of customer, leaving him/her in his/her nearby in his/her main place of drinking, leaving him/her in his/her main place of drinking, leaving him/her in his/her main place of drinking, and leaving him/her in his/her body, etc., for three days from the main place under the Defendant's control, and leaving him/her in his/her own place of customer.

[1] Article 271(1) of the Criminal Act / [2] Articles 271(1) and 275(1) of the Criminal Act

Defendant

Defendant and Prosecutor

Attorney Kim Young-ok

Seoul High Court Decision 2011No2024 decided September 9, 2011

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the Prosecutor’s Grounds of Appeal

For reasons indicated in its holding, the lower court acquitted the Defendant on the charge of robbery of this case on the ground that there was no proof of the facts charged. Examining the reasoning of the lower judgment in light of the record and relevant legal principles, the lower court’s aforementioned determination is acceptable, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine on the crime of robbery, or by recognizing facts contrary to logical

On the other hand, the prosecutor appealed the entire judgment of the court below, but there is no indication of the grounds for appeal as to the remaining points, and there is no statement of the grounds for appeal as to the grounds for appeal.

2. As to the Defendant’s ground of appeal

Article 271(1) of the Criminal Act concerning the crime of abandonment provides that the subject of the act is “a person who has legal or contractual obligation to protect a person in need of assistance due to labor, disease, or other circumstances.” The term “contractual obligation” in this context is not always limited to cases where the principal obligation under a contract is provided with assistance, such as nurse or nurse, and it does not exclude cases where the other party must assist with the other party with due care and care for the body or life of the other party so that the purpose of the contractual relationship can be achieved through the interpretation of the contract. However, in the case of the crime of abandonment, unlike the civil area where the liability for damages is mainly problematic as the effect of the breach of the contract, the criminal sanctions against the human liability of the party is a problem. Considering that the civil assistance obligation or protection obligation as above is recognized, it cannot be viewed as a matter of course that the “contractual obligation” in Article 271 of the Criminal Act needs to be determined by taking into account the nature and content of the contract relationship in question, the relationship between the parties concerned and other related persons, and the circumstances before and after the formation of the agreement.

According to the judgment of the court below and the records, the defendant was issued 1: 2. From December 31, 2010 to December 31, 2010, 1: 2.00 p.m., the victim was urged to drink with the above main points in the operation of 4:0 p.m., and the victim was under the influence of drinking with his/her employees at the above main points at around 22:48, while he/she was under the influence of drinking, 1:0 p.m., 1:0 p.m., 1:0 p.m., 30 p.m., 1:0 p.m., 1:0 p.m., 1:0 p.m., 1:0 p.m., 2:0 p.m., 1:0 p.m., 1:0 p.m., 1:00 p.m., 2:00 p.m., 1:00 p.m.

In light of the above circumstances, if the defendant was in a state where the victim, the customer of the main store operated by the defendant, was locked in a sofacing the drinking excessively over three days from the above main point under the control of the defendant, and was in a state where he was deprived of mind by taking the facing the drinking over the facul for three days from the above main point under the control of the defendant, the defendant as the operator of the above main office bears the duty of assistance under the contract to take necessary measures such as moving the victim to the main room or moving the victim into the nearby part so as not to cause any harm to the victim's life or body, making it easy for the victim to move to the main room or contact the victim's will or the police, and thus, found the defendant guilty of the charge of the abandonment death of this case in light of the above legal principles. Contrary to the allegations in the grounds of appeal, there is no violation of the principle of free evaluation of evidence and any misapprehension of legal principles as to the crime of abandonment, thereby affecting the conclusion of the judgment.

Meanwhile, although the Defendant appealed to the entire judgment of the court below, there is no indication of the grounds for appeal as to the remaining guilty portion, nor any statement of the grounds for appeal as to the grounds for appeal.

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)