[1] Meaning of “sexual abuse” prohibited under the Child Welfare Act, and whether sexual activity that does not reach the degree of sexual assault, which violates the concept of sexual assault and is likely to seriously impede the development of perfect and harmonious personality by creating a sound sexual values for children (affirmative)

[2] The principle of infertility and the scope of trial by the court / The criteria for determining which a prosecutor prosecuteds a certain act, and whether the court should clarify the purport of a prosecutor’s exercise of his/her right of explanation in cases where the purpose of an indictment causes misunderstanding or is not clear (affirmative)

[1] Article 1 of the Child Welfare Act provides, “The purpose of this Act is to guarantee the welfare of children so that children can be born healthy and happyly and safely grow up.” Article 2 of the same Act provides, “The children shall grow up happyly in a stable family environment for the development of perfect and harmonious personality (Paragraph 2). The interests of children shall be considered first in all activities concerning children (Paragraph 3).” In addition, Article 3 Subparag. 7 of the same Act defines child abuse as “the act of doing physical, mental, sexual violence or cruel acts that may harm children’s health or welfare or interfere with normal development of children, and the abandonment or neglect of children’s protectors.” Article 17 Subparag. 2 of the same Act provides, “No person shall commit obscene acts against children or mediate such acts, or sexual harassment, etc. that may cause sexual humiliation to children.”

“The act of causing a child to commit obscene acts” was included in the type of prohibited acts since the enactment of the Child Welfare Act. However, “sexual abuse” was wholly amended by Act No. 6151 on January 12, 200, and was included in the first type of prohibited acts. The phrase “the act of abusing sexual harassment, sexual assault, etc. that cause a sense of sexual shame to a child” was first revised by Act No. 11002 on August 4, 201; “the act of abusing sexual harassment, sexual assault, etc. that cause a sense of sexual shame to a child;” “the act of causing sexual humiliation to a child or sexual assault, etc.” was wholly amended by Act No. 12361 on January 28, 2014 to “the act of causing a sense of sexual humiliation to a child, etc.” (see, e.g., imprisonment with prison labor for not more than 1,000,000 won and statutory punishment including the above prohibited act of sexual abuse was deleted by Act No. 1515, respectively.

In full view of the legislative purpose and basic principles of the Child Welfare Act, the term “sexual abuse” prohibited under the Child Welfare Act refers to sexual harassment, etc. that causes a child to feel sexual humiliation, which may harm a child’s health and welfare, or impede normal development, and includes sexual violence or cruel acts that are separate from “act that causes sexual assault,” and includes sexual acts that are not likely to seriously impede a child’s development of perfect and harmonious personality, such as creating a sound sexual values.

[2] According to the principle of no accusation, a court shall not adjudicate on a case in which a public prosecutor is indicted, and the court shall adjudicate only for the case in which a public prosecutor is indicted. As such, the public prosecutor must clarify the purpose of prosecution by clarifying the facts charged in the indictment and the applicable provisions of Acts. Whether a public prosecutor indicted for certain acts shall be based on the written indictment itself, and the decision shall be made in consideration of the progress of the trial and the contents of the public prosecutor’s assertion. In a case where the purport of a public prosecution is clear, the court need not exercise its right to request explanation against it, but if the purport of the public prosecution does not cause misunderstanding or is not clear, the court shall exercise its right to request explanation against the public prosecutor pursuant to Article 141 of the Rules on Criminal Procedure and clarify

[1] Article 18 subparag. 5 (see current Article 17 subparag. 2), Article 34 subparag. 1 (see current Article 71(1)1-2), Article 29 subparag. 2 (see current Article 17 subparag. 2), Article 6 (see current Article 17 subparag. 2), Article 40 subparag. 1 (see current Article 71(1)1-2), Article 40 subparag. 2 (see current Article 71 subparag. 1-2), Article 71 subparag. 1-2 (see current Article 71(1) of the former Child Welfare Act), Article 34 subparag. 1 (see current Article 71 subparag. 2), Article 74 subparag. 1 (see current Article 71(1) of the Child Welfare Act), Article 17 subparag. 2 (see current Article 71 subparag. 1-2), Article 17 subparag. 17 subparag. 1, 207 (see current Article 71 subparag. 17 subparag. 1, 2) of the Child Welfare Act)

[2] Supreme Court Decision 2001Do5304 Decided December 27, 2001 (Gong2002Sang, 434) Supreme Court Decision 201Do10468 Decided November 10, 201, Supreme Court Decision 2011Do10468 Decided December 23, 2015, Supreme Court Decision 2014Do2727 Decided December 23, 2015

Defendant

Defendant and Prosecutor

Attorney Park Jae-soo et al. and two others

Seoul High Court Decision 2016No3694 decided February 9, 2017

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Judgment on the Defendant’s grounds of appeal

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the first instance court, the lower court is justifiable to have determined that all of the facts charged (excluding the acquittal portion) in this case is guilty on the grounds stated in its reasoning. In so doing, the lower court did not err by misapprehending the legal doctrine on “production and exhibition of obscene materials for children and juveniles” under the Act on the Protection of Children and Juveniles against Sexual Abuse, and “ emotional abuse” under the Child Welfare Act, without failing to exhaust all necessary deliberations,

2. Judgment on the grounds of appeal by the prosecutor

A. As to the violation of the Child Welfare Act due to the “act of causing a child to commit obscene acts”

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court is acceptable to have rendered a not-guilty verdict on the violation of the Child Welfare Act due to the “act of having a child engage in obscene acts” among the facts charged in the instant case on the grounds as stated in its reasoning

B. As to the violation of the Child Welfare Act due to “sexual abuse, such as sexual harassment, which causes a sense of sexual humiliation to children”

1) Article 1 of the Child Welfare Act provides, “The purpose of this Act is to guarantee the welfare of children so that children can be born healthy and happyly and safely grow up.” Article 2 of the same Act provides, “The children shall grow up happyly in a stable family environment for the development of perfect and harmonious personality (Paragraph 2). In all activities concerning children, the interest of children shall be first considered (Paragraph 3).” In addition, Article 3 Subparag. 7 of the same Act defines child abuse as “the act of physical, mental, sexual violence or cruel acts that may harm children’s health or welfare or interfere with normal development of children, and the act of a child’s guardian abandons or neglecting the child’s guardian” under Article 17 Subparag. 2 of the same Act.

“The act of causing a child to commit obscene acts” was included in the type of prohibited acts since the enactment of the Child Welfare Act, but “sexual abuse” was wholly amended by Act No. 6151 on January 12, 200, and included in the first type of prohibited acts. The phrase “the act of causing sexual harassment, sexual assault, etc. to a child” was first revised by Act No. 1102 on August 4, 201, and “the act of causing a sense of sexual humiliation, sexual assault, etc. to a child” was completely revised by Act No. 12361 on January 28, 2014; “The act of causing sexual abuse or sexual assault, etc. to a child was punished by imprisonment with prison labor for not more than 1,000 won (see, e.g., imprisonment with prison labor for not more than 2,000 won; 1,0000 won or fine not more than 2,000 won; 2,000 won or more after the amendment of the Child Welfare Act No. 15.

In full view of the legislative purpose and basic principles of the Child Welfare Act, the term “sexual abuse” prohibited under the Child Welfare Act refers to sexual harassment, etc. that causes a child to feel sexual humiliation, which may harm a child’s health and welfare or impede normal development, and it is an act separate from “act that causes sexual assault,” and it is reasonable to view that such act is an act that is not likely to seriously impede a child’s development of perfect and harmonious personality, such as creating a sound sexual values, if it violates the concept of sexual assault and that it is an act that is not likely to seriously impede a child’s development of personality.

On the other hand, under the principle of no accusation, a court may not make a trial without a public prosecution by a public prosecutor, and the court shall make a trial only for the case of public prosecution (see Supreme Court Decisions 2001Do5304, Dec. 27, 2001; 2001Do5304, Dec. 27, 2001). A public prosecutor must clarify the purpose of public prosecution by clarifying the facts charged and the applicable provisions of Acts in the indictment. Whether a public prosecutor prosecuted certain acts shall be basically based on the written indictment, and shall be determined based on the process of the trial and the contents of the public prosecutor’s assertion. Where the purport of public prosecution is clearly stated, the court need not exercise its right to request explanation against it, but if the purport of public prosecution does not cause misunderstanding or make it impossible to do so, the court shall exercise its right to request explanation against the public prosecutor (see, e.g., Supreme Court Decisions 201Do10468, Nov. 10, 2011>

2) According to the records, the prosecutor stated that the defendant's act of sexual harassment on October 31, 2015 constitutes a violation of the Child Welfare Act (i.e., coercion to commit sexual harassment on children, sexual harassment, etc.) (i., sexual harassment on or before the court below's dismissal of the defendant's sexual harassment; (ii) the defendant's act of failing to prosecute the victim of sexual harassment on or before the court below's 09:45; and (iii) the defendant's act of failing to prosecute the victim of sexual harassment on or after the defendant's 14 years of age; and (iv) the defendant's act of failing to prosecute the victim of sexual harassment on or after the date of trial constitutes an obscene act of sexual harassment; and (iii) the defendant's act of failing to prosecute the victim of sexual humiliation on or after the date of trial, which constitutes an obscene act of sexual harassment on or after the defendant's act of using the victim's sexual harassment on or after the date of trial; and (iii) the court below stated that the defendant's act of sexual abuse on or sexual abuse was obviously.

3) Examining the above language and text of the indictment and the process of the trial in light of the above legal principles, there is sufficient room to regard this part of the indictment by the prosecutor as not only “act of having a child engage in drinking,” but also “sexual abuse.” Even if it is difficult to readily conclude it, the lower court should have deliberated and determined on this part of the indictment by making the prosecutor clarify the litigation relation in accordance with Article 141 of the Regulations on Criminal Procedure, such as seeking an explanation on the relation with “act of having a child feel sexual humiliation” and “act of having a child feel obscene,” considering the written opinion and the prosecutor’s assertion in the statement of grounds of appeal.

Nevertheless, the court below tried and judged only on “the act of having a child engage in obscene acts,” and on “the act of sexual abuse, such as sexual harassment, etc. that cause a sense of sexual shame to a child,” without any indictment. It erred by failing to exhaust all necessary deliberations, which affected the conclusion of the judgment by failing to exhaust all necessary deliberations. The ground of appeal assigning this error is with merit.

3. Scope of reversal

The part of the judgment below on the violation of the Child Welfare Act due to the "sexual harassment, etc. that causes a sense of sexual humiliation to children" should be reversed. This part is in a relation to the violation of the Child Welfare Act due to the "act of causing a child to commit an obscene act" with the part on the violation of the Child Welfare Act, and since the remaining part of the judgment below convicting the defendant is in a relation of concurrent crimes under the former part of Article

4. Conclusion

The lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)