[1] Matters to be considered when determining whether a protector of a child under the Child Welfare Act violated Article 71(1)2 of the Child Welfare Act by neglecting the child, and in particular, when the protector is a person with parental authority or a principal protector equivalent thereto, matters to be considered important

[2] The case affirming the judgment below holding that in case where the defendant, who is a child Gap (the age of 1), was prosecuted for violating the Child Welfare Act on the ground that he neglected to protect, rear, treat and educate Gap, by failing to clean up the remaining food and drink, brut, and cigarette butts inside the house while raising Gap, and neglecting Gap properly in an unsanitary environment where malodor emitting malodor, caused Gap to unsanitary circumstances where he did not clean properly, and thereby neglecting Gap's clothes containing food, clothing, and bath periodically, the case affirming the judgment below that the defendant, who is a person with parental authority, committed an act of neglecting the basic protection, rearing, medical care and education including food, clothing, etc. against Gap

[1] The purpose of the Child Welfare Act is to guarantee the welfare of children so that children can be born healthy and grow up happy and safe (Article 1). Children must grow up happy in a stable family environment for the development of perfect and harmonious personality (Article 2(2)).

The guardian of a child under the Child Welfare Act refers to a person with parental authority, a guardian, a person who protects, rears, or educates a child, or is obligated to do so, or a person who actually protects and supervises a child due to his/her duties, employment, etc. (Article 3 subparag. 3). The guardian of a child shall rear the child in a healthy and safe manner in accordance with the period of his/her growth at home, and shall not inflict any physical suffering or mental suffering such as verbal abuse (Article 5(1) and (2)).

In addition, with the definition of the meaning of child abuse, the Child Welfare Act separates a child’s guardian and other adults, with respect to adults who are not the child’s guardian, including abandonment or neglect of a child in addition to the above acts (Article 3 subparag. 7). A child under his/her protection and supervision is prohibited from neglecting the basic protection, rearing, treatment, and education, including food, clothing, and shelter (Article 17 subparag. 6). A child is punished by imprisonment with labor for not more than five years or by a fine not exceeding 50 million won (Article 71(1)2).

Therefore, when determining whether a guardian violated Article 71(1)2 of the Child Welfare Act by neglecting a child, it is necessary to comprehensively consider the circumstances such as the relationship between the guardian and the child, the age of the child, the details and mode of neglect of the act of care on the premise that the protector bears a certain obligation to achieve the legislative purpose of the Child Welfare Act, along with the legislative purpose of the Child Welfare Act. In particular, if the protector is a person with parental authority or a principal child corresponding thereto, the primary responsibility for protecting and fostering the child should be taken into account.

[2] The case affirming the judgment of the court below which held that in case where the defendant, a child Gap (the 1 year old), was prosecuted for violating the Child Welfare Act on the ground that he did not properly clean the food and drink remaining after drinking inside the house while bringing up Gap, and did not clean the house in an unsanitary environment where malodor was not brought up, and caused Gap to grow malodor on his body because he did not do so periodically, and he did not do so, he did not do so. The court below erred in holding that the court below erred in holding that the defendant raised Gap in an unsanitary environment and not maintained Gap's clothes and body clean, and that the defendant neglected to protect, nurture and educate him, including basic food, clothing, medical care and education, such as going outside the house, on the ground that it is hard to see that the minimum protection necessary for survival was made, but the defendant expressed the defendant's peta, but it is hard to see that he had fulfilled his duty required for the health, safety, and happiness of happiness as a person with parental authority, and that the defendant took care of Gap.

[1] Articles 1, 2(2), 3 subparag. 3 and 7, 5(1) and (2), 17 subparag. 6, and 71(1)2 of the Child Welfare Act / [2] Articles 3 subparag. 3 and 7, 17 subparag. 6, and 71(1)2 of the Child Welfare Act

Defendant

Defendant

Attorney Sick-gu

Seoul High Court Decision 2019No2721 decided May 29, 2020

The appeal is dismissed.

The grounds of appeal are examined.

1. Part concerning the violation of the Act on Special Cases concerning Punishment, etc. of Child Abuse Crimes

Article 2 Subparag. 4 of the Act on Special Cases Concerning the Punishment, etc. of Child Abuse Crimes (hereinafter “Child Abuse Punishment Act”) provides that “The child abuse crime is a child abuse by a child’s guardian and falling under any of the following items,” and Article 271(1)(b) of the Criminal Act lists the crimes under Article 271(1)(b) of the Criminal Act. Article 4 (Death or Injury by Child Abuse) provides that a person who commits a crime of child abuse under Article 2 Subparag. 4(a) through (c) shall be punished by imprisonment for life or for not less than five years.

In this case where a prosecution was instituted against “the death of child abuse by abandonment” as prescribed in Articles 4 and 2 subparag. 4(b) of the Child Abuse Punishment Act and Article 271(1) of the Criminal Act, the lower court determined that the Defendant’s act of taking away the victim Nonindicted Party 1 (the second son of the Defendant) who was born in his house for three months after the commission of the crime, and then went back two times until the next day, and returned back again, and did not look back to the victim during fifteen hours and thirty minutes, and did not confirm the state of the victim. In addition, the lower court determined that the Defendant’s act of taking away the victim’s body and body as the result of the autopsy on the victim’s death was not clear, but the possibility of the death of the victim’s body and body cannot be ruled out, and that the Defendant’s act of taking the victim’s body and body cannot be ruled out to the extent that the victim’s life and body could not be protected by the victim.

Examining the reasoning of the lower judgment in light of the relevant legal principles and the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine regarding the Child Abuse Punishment Act, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, on the premise that the Defendant’s abandonment is included in “child abuse crime” stipulated in the Child Abuse Punishment Act.

Meanwhile, the argument that the court below erred in the violation of the principle of an indictment only is asserted in the final appeal that the defendant took it as the ground for appeal or the court below did not take it as the object of judgment ex officio, and there is no legitimate ground for appeal. Furthermore, even if examining, it did not err

2. Part on violation of the Child Welfare Act

The purpose of the Child Welfare Act is to guarantee the welfare of children so that children can be born healthy and grow up happy and safe (Article 1). Children must grow up happy in a stable family environment for the development of perfect and harmonious personality (Article 2(2)).

The guardian of a child under the Child Welfare Act refers to a person with parental authority, a guardian, a person who protects, rears, or educates a child, or is obligated to do so, or a person who actually protects and supervises a child due to his/her duties, employment, etc. (Article 3 subparag. 3). The guardian of a child shall rear the child in a healthy and safe manner in accordance with the period of his/her growth at home, and shall not inflict any physical suffering or mental suffering such as verbal abuse (Article 5(1) and (2)).

In addition, with the definition of the meaning of child abuse, the Child Welfare Act separates a child’s guardian and other adults, with respect to adults who are not the child’s guardian, including abandonment or neglect of a child in addition to the above acts (Article 3 subparag. 7). A child under his/her protection and supervision is prohibited from neglecting the basic protection, rearing, treatment, and education, including food, clothing, and shelter (Article 17 subparag. 6). A child is punished by imprisonment with labor for not more than five years or by a fine not exceeding 50 million won (Article 71(1)2).

Therefore, when determining whether a protector violated Article 71(1)2 of the Child Welfare Act by neglecting a child, it is necessary to comprehensively consider such circumstances as the relationship between the protector and the child, the age of the child, the process of neglect of the act of care, and the attitude of the protector, on the premise that the protector bears a certain obligation to achieve the legislative purpose, along with the above legislative purpose of the Child Welfare Act. In particular, if the protector is a person with parental authority or a principal child corresponding thereto, the primary responsibility for protecting and fostering the child should be taken into account.

The court below acknowledged the facts as stated in its reasoning as to this part of the facts charged that the pro-born defendant, while raising the victim non-indicted 2 (the first son of the defendant), did not clean the remaining food, garbage, spawn, and cigarette butts inside the house, and did not clean the above victim properly in an unsanitary environment where malodor gets out, and caused the above victim to grow malodor on his body because he did not clean down properly in the unsanitary environment where malodor gets out, the court below held that the defendant neglected to protect, rear, treat, and educate the victim, including food and clothing, but not keep the victim's clothes and body clean, and that the defendant neglected to take care of the victim's clothes and body in an unsanitary environment.

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the first instance court and the lower court, the said determination by the lower court is justifiable, and furthermore, it is difficult to deem that the Defendant was a person with parental authority with parental authority over the victim who did not reach the age of one at the time and did not have any duty necessary for the victim’s health, safety, and happiness. Therefore, contrary to what is alleged in the grounds of appeal, the lower court did not err in its judgment by misapprehending the legal doctrine regarding “refiscing” prohibited under the Child Welfare Act, or by exceeding the bounds of the principle of free evaluation of evidence

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 Noh Tae-tae (Presiding Justice)