The meaning of “ emotional abuse that may cause harm to the mental health and development of a child” under Article 17 subparag. 5 of the former Child Welfare Act / Whether it includes cases where there is a risk or possibility that may cause harm to the mental health and normal development of a child (affirmative), and whether it is sufficient if the child is aware of the risk or possibility with dominence (affirmative)

Article 17 of the former Child Welfare Act (amended by Act No. 12361, Jan. 28, 2014) provides that “an act of emotional abuse that causes damage to a child’s body” as a prohibited act against a child under subparagraph 3, and separately provides that “an act of emotional abuse that causes harm to the mental health and development of the child” under subparagraph 5, and that an act of emotional abuse that does not cause harm to the mental health and development of the child among the acts of causing damage to the child cannot be presented. In light of the language and text of each of the above provisions, an act of subparagraph 5 refers to an act of emotional abuse that does not accompany the exercise of tangible power, but does not amount to physical damage.

In this context, “ emotional abuse that may cause harm to the mental health and development of a child” includes not only cases where the mental health and normal development of a child has been hindered but also cases where the risk or possibility of causing such a result has occurred. It is sufficient to do so with dolusent recognition that there is a risk or possibility of undermining the mental health and development of a child by his/her own act, rather than cases where the purpose or intent of emotional abuse against a child is required.

Subparagraph 3 and 5 of Article 17 and Article 71(1)2 of the former Child Welfare Act (Amended by Act No. 12361, Jan. 28, 2014);

Supreme Court Decision 2011Do6015 Decided October 13, 2011

Defendant

Defendant

Attorney Park Young-cheon et al.

Suwon District Court Decision 2015No492 decided August 21, 2015

The appeal is dismissed.

The grounds of appeal are examined.

Article 17 of the former Child Welfare Act (amended by Act No. 12361, Jan. 28, 2014; hereinafter “Child Welfare Act”) provides for “an act of emotional abuse that causes damage to a child’s body” in subparagraph 3 due to a child’s prohibited act, and separately provides for “an act of emotional abuse that causes harm to the mental health and development of a child” in subparagraph 5. In light of the fact that an act of causing damage to a child’s body cannot be presented that does not harm the mental health and development of the child, and the language and text of each of the above provisions, etc., the act of subparagraph 5 refers to an act of emotional abuse that does not entail the exercise of tangible power, but does not reach the physical damage (see Supreme Court Decision 201Do6015, Oct. 13, 2011).

In this context, the term " emotional abuse that causes harm to the mental health and development of a child" includes not only a case where the mental health and the normal development of a child is practically impeded but also a case where the risk or possibility of causing such a result arises. It is not necessarily recognized that the purpose or intent of emotional abuse against a child is not required, but it is sufficient to do so with the dolus recognition of the risk or possibility of hindering the mental health and development of a child due to his/her own act.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court was justifiable to have determined the Defendant guilty on the ground that the instant facts charged against the Defendant constituted emotional abuse under Article 17 subparag. 5 of the Child Welfare Act, on the grounds indicated in its reasoning. In so doing, contrary to what is alleged in the grounds of appeal, 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

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

Justices Lee In-bok (Presiding Justice)