Whether “the act of killing in a cruel manner” under Article 8(1)1 of the Animal Protection Act satisfies the elements of a crime by itself (affirmative), and whether the act constitutes the elements of a crime where there are circumstances justifying the act or circumstances not attributable to the actor, and whether the act constitutes the element of a crime where there are circumstances not attributable to the actor (negative)

Comprehensively taking account of the purpose and legislative purport of the Animal Protection Act and the language, structure, etc. of each subparagraph of Article 8(1)1 of the Animal Protection Act, “an act of killing in a cruel manner” under Article 8(1)1 of the Animal Protection Act meets the elements of an element by itself to “an act of killing in a cruel manner” as it does not stipulate a justifiable reason differently from the case of Article 8(1)4 of the same Act, and thus, constitutes a “act of killing in a cruel manner.” Even if there is a circumstance that can justify the act or a circumstance that cannot be attributable to the actor, the elements of an element of an element cannot be deemed to be dismissed, regardless of whether the act can be dismissed

Articles 1, 2 subparag. 1, 8(1), and 46(1) of the Animal Protection Act

Defendant

Defendant and Prosecutor

Suwon District Court Decision 2013No505 decided January 22, 2014

The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

A. The "emergency evacuation" under Article 22 (1) of the Criminal Code refers to an act with a reasonable reason to avoid the present danger to his or another person's legal interests, and in order to constitute "an act with a reasonable reason," the act of escape should be the only means to protect the legal interests in danger, the act of escape should be the only means to protect the legal interests in danger, the second victim should be the most minor damage. Third, the profit to be compensated by the act of escape should be more superior to the profit that is infringed by it. Fourth, the act of escape must be a proper means in light of social ethics or the overall spirit of legal order (see, e.g., Supreme Court Decision 2005Do9396, Apr. 13, 206).

B. After compiling the adopted evidence, the court below acknowledged the facts as stated in its holding, and found the defendant guilty of this part of the charges of this case on the ground that the damage to property in this case did not constitute a usual and aggressive excess escape under Article 22(3) of the Criminal Act, since the defendant could have protected his own property by putting his monat or mechanical saws, etc. in order to protect his monat, and therefore, the act of cutting the damaged dog into a mechanical saw cannot be deemed as an act exceeding the reasonableness of the act of escape and meeting the requirements for emergency evacuation under Article 22(1) of the Criminal Act, and as long as there is no evidence to deem that the damaged dog was not attacked by the defendant at the time and that the damaged dog had a usual aggressive relation, it does not constitute an excessive escape under Article 22(3) of the Criminal Act.

C. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted by the lower court, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence in violation

2. As to the Prosecutor’s ground of appeal

A. The Animal Protection Act was enacted for the purpose of protecting animals and promoting their lives, ensuring safety, and welfare by providing for matters necessary to prevent animal abuse and to properly protect and manage animals (Article 1). The Act limits “animals” subject to such protection to animals falling under brates, etc. (Article 2 subparag. 1) and limits the act of killing animals by cruel methods, such as hanging, etc. (Article 8(1)1), “the act of killing animals or killing animals at public places, such as nanotechnology, etc.” (Article 8(1)2), “an act of killing animals or killing animals in public places, etc.” (Article 8(1)1); “an act of killing animals by death or injuring animals in public places, etc.” (Article 1 subparag. 3 of the same Act); “an act of killing animals or killing animals due to animal feed or drinking water,” and “an act of causing death or bodily harm to animals” (Article 18(1)6 of the Animal Protection Act) and “an act of causing death or bodily harm to an animal without justifiable cause” (Article 18(4).6).

B. According to the reasoning of the judgment below and the evidence duly admitted, although the defendant was not subject to direct attack from the damaged dog at the time, and the defendant was able to escape from the damaged dog to another place or to drive a monat or a machine saw around, the defendant himself/herself, even though he/she was able to drive away from the damaged dog, and cut off the part including the spine of the damaged dog from the part of the damaged dog to the damaged dog, and thereby, he/she died of the damaged dog beyond the inside. Thus, in light of the above legal principles, the defendant's above act should not be deemed to constitute "the act of killing in the cruel manner, such as breaking, etc." prohibited by Article 8 (1) 1 of the Animal Protection Act, nor should the defendant be deemed to have a ground for disqualification or liability. Furthermore, it is difficult to view that the defendant's act constitutes a ground for disqualification or liability.

Nevertheless, the court below found the Defendant not guilty of violating the Animal Protection Act among the charges of this case on the ground that the Defendant’s above act does not meet the elements of Article 8(1)1 of the Animal Protection Act, on the premise of the erroneous interpretation that “the act of killing an animal by a cruel method” under Article 8(1)1 of the Animal Protection Act is an act of killing an animal by a cruel method without a justifiable and reasonable reason, and on the premise of the erroneous interpretation that the act of killing an animal is an act of killing an animal, the court below erred by misapprehending the legal principles as to the interpretation of the elements of a crime under Article 8(1)1 of the Animal Protection Act, and the allegation in the grounds of appeal assigning this error is with merit.

3. Scope of reversal

Of the lower judgment, the part of the lower judgment on violation of the Animal Protection Act cannot be reversed because of the error as seen above. This part of the lower judgment should be sentenced to a single punishment for all of the property damage and ordinary concurrences with the property damage which the lower court found guilty. As such, the lower judgment is reversed in its entirety.

4. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)