The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 5,000,000.

The above fine shall not be paid by the defendant.

Summary of Grounds for Appeal

A. The Defendant’s act of mistake does not constitute physical abuse against the victimized child.

B. The sentence imposed by the lower court on the grounds that the sentence of unfair sentencing (two months of imprisonment, two years of suspended sentence, 40 hours of order to attend a lecture, 80 hours of community service order, three years of restriction on employment related to children) is too unreasonable.

2. Determination

A. In determining whether an act of physical abuse constitutes a mistake of facts, in light of the purpose (Article 1) of the Child Welfare Act to guarantee the welfare of a child so that the child is born healthy and happyly and safely, the determination shall be made by comprehensively taking into account the place and time of occurrence of the act, the motive and background leading up to the act, the degree and manner of the act, the response of the child, and other specific before and after the act, as well as the circumstances before and after the act, including the child’s age and health conditions, the offender’s ordinary inclination

(See Supreme Court Decision 2017Do12742 Decided January 16, 2020). In light of the aforementioned legal doctrine, the Defendant, recognized by the evidence duly adopted and investigated by the lower court, was in a situation where the victimized child exercised force against the victimized child (i.e., the victimized child’s toy of the victimized child was taken back, but physical conflict between the victimized child was not occurred, and even after the victimized child’s toy was taken out from the victimized child’s hand, the victimized child was showing a net attitude toward the victimized child facing the Defendant’s eye, and even though the victimized was not trying to move the victimized child to another place or had a violent attitude at the time, the Defendant did not appear to move the victimized child to a different place, and thereafter, took the two arms of the victimized child back to the rear, and the Defendant was against the victimized child’s will at a very long time and time due to the method and degree of exercising force on the victimized child’s hand.