[1] Standard for determining whether an act constitutes “physical abuse” subject to punishment under the Child Welfare Act amended on January 28, 2014

[2] The case affirming the judgment of the court below denying physical abuse on the ground that, in case where the defendant, who is the teacher taking exclusive charge of child-care center disability, was prosecuted for committing physical abuse, such as cutting Gap's arms onto the floor on the ground that he was unable to properly organize play tools without properly arranging it, the defendant was indicted for the primary charges of violation of the Child Welfare Act, such as violation of the Child Welfare Act

[1] Article 17 subparag. 3 of the former Child Welfare Act (amended by Act No. 12361, Jan. 28, 2014; hereinafter the same) provides that “an act of abuse, which causes physical harm to a child’s body,” which is subject to punishment, is “an act of abuse that causes harm to a child’s body.” Under the former Child Welfare Act, the Supreme Court held that “an act of abuse that causes bodily harm to a child,” even if it does not reach the degree of “injury” which causes harm to a child’s body or harm to a physiological function by exercising a tangible power against the child’s body, it means that

Article 17 Subparag. 3 of the amended Child Welfare Act (amended by Act No. 12361, Jan. 28, 2014; hereinafter the same) provides that “physical abuse that may harm a child’s health and development” was included in the elements of a crime.

In determining whether a child constitutes an act of physical abuse under the revised Child Welfare Act, in light of the purpose of the Child Welfare Act (Article 1) to ensure the welfare of the child born healthy and happyly and safely, the determination shall be made by comprehensively taking into account the place and time of the act, the motive and background of the act, the degree and manner of the act, the response to the child, and other specific before and after the act, as well as the circumstances before and after the act, such as the child’s age and health conditions, the offender’s ordinary inclination or the repetition of similar act

[2] In a case where the defendant, who is a teacher taking exclusive charge of child care center disability, was prosecuted for committing physical abuse, such as cutting Gap's arms onto the floor without properly arranging play tools, the case affirming the judgment of the court below that the defendant, who was charged with the violation of the Child Welfare Act, was taking exclusive charge of three guidances for disabled children including Gap, who had developmental disorder, as a special teacher for disabled children, in accordance with the Act on Welfare Support for Disabled Children, and tried to repeatedly instruct or give irrelevant directions or give irrelevant directions to correct Gap's behavior while conducting error on a half-month basis, and that the defendant tried to take various educational guidances for the remaining teachers, such as Gap's behavior to refuse to play after playing, and to see that the defendant's act was consistent with the above instruction methods, such as giving rise to a series of instructions and guidance methods, and thus, it is reasonable to view that the above instruction methods, including those of guidance methods, were consistent with the above instruction methods.

[1] Article 17 subparag. 3 of the former Child Welfare Act (Amended by Act No. 12361, Jan. 28, 2014); Article 1 and Article 17 subparag. 3 of the Child Welfare Act / [2] Article 71(1)2 of the former Child Welfare Act (Amended by Act No. 14925, Oct. 24, 2017); Article 17 subparag. 3 of the Child Welfare Act; Article 325 of the Criminal Procedure Act

[1] Supreme Court Decision 2015Do6781 Decided May 12, 2016 (Gong2016Sang, 813)

Defendant

Prosecutor

Law Firm Jeju Law Firm, Attorneys Sung Jong-hun et al., Counsel for the defendant-appellant

Jeju District Court Decision 2017No118 decided July 20, 2017

The appeal is dismissed.

The grounds of appeal are examined.

1. As to the ground of appeal No. 1 (the part concerning the principal facts charged)

A. The judgment of the court below

1) The summary of this part of the facts charged is that “the Defendant committed physical abuse, such as cutting the arms of the victimized child, on the ground that the five-year victimized child suffering from developmental disability as a child-care center disability teacher was unable to properly arrange the play tools and was hard on the floor.”

2) On this premise, the court below affirmed the judgment of the first instance court which acquitted the defendant of this part of the charges on the ground that there are various factors such as the specific situation, characteristics, age, and degree of development in determining the criteria of the children's affected development, and that there are special characteristics such as the unexpected situation and the activity of the children with developmental disorder is not smooth, while there is a disability, and where the development is dependent on the current state maintenance education on the part of the children with developmental disorder, it is more likely to see that the defendant selected the method of guidance which is more simple than that of the case at the time of the occurrence of the child's normal development, by taking into account the facts as stated in its reasoning, when the defendant made an error of half and half of a month, while taking advantage of the facts as stated in its reasoning, the defendant's act is deemed to have derived from the intention of promoting the children's normal development. Accordingly, it is difficult to view the defendant's act as "physical violence that may harm the children's health or welfare or undermine the normal development of the children."

B. Meaning and standard of determination of physical abuse

1) Amendment of the statute

Article 17 Subparag. 3 of the former Child Welfare Act (amended by Act No. 12361, Jan. 28, 2014; hereinafter the same) stipulated that “an act of abuse that causes physical harm to a child’s body” as “an act of abuse that is subject to punishment.” Under the former Child Welfare Act, the Supreme Court held that “an act of abuse that causes physical harm to a child” refers to an act of causing a negative physical change to the extent equivalent thereto even if it does not reach the degree of “injury” due to the exercise of physical force against the child’s body or interfere with physiological functions (see Supreme Court Decision 2015Do6781, May 12, 2016).

Article 17 Subparag. 3 of the amended Child Welfare Act (amended by Act No. 12361, Jan. 28, 2014; hereinafter the same) provides that “physical abuse that may harm the health and development of a child or injure physical health and development of a child” was added to the elements of the crime.

2) Criteria for determination

In determining whether a child constitutes a physical abuse under the revised Child Welfare Act, in light of the purpose of the Child Welfare Act (Article 1), the place and time of the act, motive and background of the act, degree and manner of the act, response to the child, and other specific before and after the act, as well as the situation before and after the act, such as the child’s age and health conditions, the offender’s reputation or repetition of a similar act, and the period of the act should be comprehensively considered.

3) In the instant case:

The court below acknowledged the following facts based on the evidence duly admitted.

A) Pursuant to the Act on Welfare Support for Disabled Children, the Defendant, as a special teacher of the instant childcare center for disabled children, has been in full charge of guiding disabled children, including the victimized children with developmental disabilities. The Defendant has repeatedly directed them to correct the behavior of the victimized children through an error of half a month, and has attempted to provide various educational guidance so that he/she is able to guide them to correct the behavior of the disabled children.

B) At the time of the instant case, there is a lot of room to view as part of a series of curriculum a series of acts, including the act before and after the instant act, are consistent with the contents concerning the guidance of the victimized party, and there is no active action that may be ratified, such as putting the victimized party into hand or salking, during the series of acts, such as setting a salute, on the ground that a situation where the victimized party refuses to be arranged after play, and saluting the salute, etc., takes place, and as a method of temporarily cutting the salute for the purpose of saluting the victimized party.

C) After the instant case, the victimized child was in line with the Defendant’s guidance, and the Defendant was in line with the victim’s arms and rhythms during class hours, and the victimized child was in line with the Defendant’s normal guidance.

The lower court determined that the Defendant’s choice of guidance methods that it considers most appropriate within the reasonable scope and denied physical abuse by deeming that it can be deemed as part of continuous decoration. In so determining, 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.

2. As to the ground of appeal No. 2 (as to the part concerning the preliminary facts charged)

For the reasons indicated in its holding, the lower court acquitted the Defendant of this part of the facts charged, on the ground that it is difficult to view that there is a proximate causal relation between the Defendant’s act and the victim’s injury, and in light of the background leading up to the victim’s wife and the series of acts of the Defendant and the victim, etc.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err by misapprehending the rules of evidence or omitting judgment.

3. Conclusion

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

Justices Jo Hee-de (Presiding Justice)