2020No3196 Infantide, dead body abandonment

A

Both parties

Ansan-ju (Court of Second Instance), Consideration-jin (Court of Second Instance)

Attorney Go-young (National Election)

Daejeon District Court Decision 2020Da3314 Decided September 25, 2020

December 2, 2020

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than one year and six months.

However, the execution of the above punishment shall be suspended for three years from the date this judgment became final and conclusive.

The defendant shall be ordered to provide community service for 80 hours.

The defendant shall be ordered to prohibit the operation, employment, and actual labor of child-related institutions for five years.

Seized evidence 2, 8, and 9 shall be confiscated.

1. Summary of grounds for appeal;

A. Defendant

1) misunderstanding of facts or misunderstanding of legal principles (as to the suicide of the baby)

Since the defendant was only the intention of abortion at the time of the case, and it is unclear whether the defendant was aware that the victim was living and was born, it cannot be readily concluded that the victim intentionally caused the death of the baby, but on a different premise, the court below found the defendant guilty of this part of the facts charged, which is erroneous in the misapprehension of legal principles, thereby affecting the conclusion of the judgment.

2) Unreasonable sentencing

Even if there is no age, the sentence of the lower court (one year and six months of imprisonment, and five years of employment restriction order of child-related institutions) is too unreasonable.

(b) Prosecutors;

The above sentence of the court below is too unhued and unfair.

2. Judgment on the defendant's assertion of misunderstanding of facts or misapprehension of legal principles as to the damage of infant suicide

A. Comprehensively taking into account the evidence duly adopted and examined by the court below and the trial court, in particular, the internal investigation report (Attachment to the Kakao Stockholm conversation) and the following facts and circumstances revealed by the defendant's statements at the investigative agency, the defendant who was clearly aware of the birth of the victim may be found to have caused the victim's death by neglecting the victim's birth to the toilet change box.

1) 피고인은 피해자를 출산한 직후인 2020. 1. 29. 13:15:27부터 13:37:02까지 "나왔는데", "근데 아기가 살아있는 것 같아여", "방금 좀 움직였는데", "어떡하죠" "저기여 도와주세요ㅠ", "네 방금도 움직았는데", "살아있는 것 같아요", "움직였어요", "소리냈 어요...", "다시 (변기에) 넣었는데"라는 내용의 문자메시지(증거기록 85~87쪽)를 낙태약 판매 사이트 관계자에게 보냈다.

2) 피고인은 경찰 조사과정에서 출산한 아이의 크기 및 건강상태를 묻는 수사관의 질문에 "울지는 않았고, 입을 살짝 움직였던 것 같고 몸통이 움찔움찔 하긴 했습니 다."(증거기록 460쪽), "변기에서 꺼내는 과정에서 아기를 들어서 바닥에 내려놨는데, 이 과정에서 아이가 입과 몸을 움직이는 것을 본 것입니다. 울음소리는 기억이 안납니 다" (증거기록 463쪽)라고 진술하였다.

3) In addition, the Defendant stated in the prosecutor’s investigation that “the victim was aware that he was living immediately after the birth, but was left in the changed season,” and that “the victim was put in the changed season again (Evidence Records 664, 665 pages).”

B. If there are such circumstances, it can be sufficiently recognized that the defendant had the awareness and intent to kill the victim who is a baby, so the court below's decision that found the defendant guilty of this part of the facts charged is justified, and there is no error of misunderstanding of facts or misunderstanding of legal principles pointed out by the defendant

3. Determination on the grounds of unfair sentencing by both parties

The life of a person can not be waived in any case and needs to be absolutely protected, and the life of a child born on the side cannot be an exception, and the life of the child born on the side cannot be determined depending on the will or ability of the father's care. Although the defendant is in a guardian position to protect the victim who is born on the side, the defendant not only caused the death by leaving the victim who is born on the side as it is in a changeer, but also leaving the body unattended, and further abandoning the body. In light of the substance of the crime, the crime is not weak in light of the substance of the crime.

However, the Defendant had caused a crime in this case due to fear of humiliation and criticism that may have a sense of shame and family, etc. in the extreme interest situation immediately after the delivery with no criminal power, and the circumstances that may be considered in the process of the crime are observed. Although the Defendant is dissatisfied with the intent to commit a crime in this case, even though he or she is arguing the intention to commit a crime in this case, the person who is suffering the highest pain due to each of the crimes in this case is eventually the Defendant himself or herself, and the case seems to remain a big place in the future, and in full view of all the sentencing factors as shown in the records and arguments in this case, such as age, character and behavior, environment, the process and result of the crime, and the circumstances after the crime, etc., the sentence of the lower court is unreasonable, rather than that of the Defendant, so far.

4. Conclusion

Thus, since the appeal by the defendant is well-grounded, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and it is again decided as follows, but as long as the judgment of the court below is reversed by accepting the defendant's appeal

【Discretionary Judgment】

Criminal facts and summary of evidence

The summary of the facts constituting an offense and the evidence recognized by this court is the same as that of the original judgment, and thus, it is cited in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Article applicable to criminal facts;

Articles 251, 161(1) of the Criminal Act

1. Aggravation for concurrent crimes;

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act

1. Social service order;

Article 62-2 of the Criminal Act

1. An employment restriction order;

Article 29-3 (1) of the Child Welfare Act

1. Confiscation;

Article 48(1)1;

The presiding judge, judge, leapiti

Judges Gyeong-hee

Judges Lee Chang-hwan