Defendant

Prosecutor

Freeboard (prosecutions) and sexually explicit (public trial)

Attorney Kim Sung-hoon

Jeju District Court Decision 2016Gohap853 Decided February 3, 2017

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

Comprehensively taking account of the evidence submitted by the prosecutor, it can be sufficiently recognized that the defendant committed physical abuse against the victimized child. Nevertheless, the judgment of the court below which acquitted the victimized child, erred by misapprehending the legal principles.

2. Addition of preliminary facts charged;

In the trial of the political party, the prosecutor stated the existing facts charged as the primary facts charged, and added the term "injury crime" to the name of the first preliminary crime, "Article 257 (1) of the Criminal Act" to the applicable provisions of the Criminal Act, "Article 257 (1) of the Criminal Act" to the name of the second preliminary crime, "crime of Violence" to the name of the second preliminary crime, "Article 262, Article 260 (1), and Article 257 (1) of the Criminal Act" to the applicable provisions of the Criminal Act, "Article 262, Article 260 (1), and Article 257 (1) of the Criminal Act" to the applicable provisions of the Criminal Act, and "Article 4-A (2) below to the indictment, and this court permitted the amendment of the indictment. Accordingly, although the scope of the trial has changed, the prosecutor's assertion of mistake of facts or misapprehension

3. Judgment of misconception of facts or misapprehension of legal principles as to the primary facts charged

A. Summary of the primary facts charged

On April 19, 2016, the Defendant: (a) around 09:57 at Jeju-si, Jeju-si, △△△△△△△○○○○○○○, caused the victim Nonindicted Party (the son, 5 years old), suffering from developmental disorder in the classroom of the △△△△△△△△△○○○○○○○○○○, without properly arranging the playing tools; (b) caused the victim’s arms to be cut off to the floor, cut off the victim’s arms, cut off the victim’s arms, cut off the victim’s arms, cut down the victim’s arms, cut down the victim’s arms, pushed the victim’s arms to go back to the defendant; and (c) caused the victim’s arms to go out of the defendant to be pushed down with about 14 days on the right side, which requires the victim’s treatment.

As a result, the defendant committed physical abuse against a child that may injure the child's body or injure the physical health and development of the child.

B. The judgment of the court below

The court below found the Defendant not guilty of the facts charged in the instant case on the ground that the evidence presented by the prosecutor alone, based on the evidence presented by the prosecutor, is not sufficient to view the Defendant’s act as “the physical violence that may harm the health or welfare of the child or impede normal development of the child,” and there is no other sufficient proof, and ② it is difficult to recognize the Defendant’s willful negligence, and it is difficult to view this part

C. Judgment of the court below

1) Relevant legal principles

In a criminal trial, the burden of proof for the facts constituting an offense prosecuted is to be borne by a public prosecutor, and the conviction of guilt is to be based on evidence with probative value that makes a judge feel true beyond a reasonable doubt. Thus, if there is no such evidence, even if there is doubt for guilt against the defendant, it shall be determined with the benefit of the defendant (see Supreme Court Decision 2006Do735, Apr. 27, 2006, etc.).

2) Determination

Examining the judgment of the court below in light of the above legal principles and closely, it is just for the court below to have judged that the facts charged in this case constitute a case without proof of facts constituting a crime, and it did not err by mistake of facts or by misapprehending the legal principles as alleged by the prosecutor.

4. Judgment on the ancillary charges added at the trial room

A. Summary of each of the facts charged

1) First Preliminary Facts

The defendant is a person who works as a disabled teacher at the △△△△△△△△ Child Care Center in Jeju-si.

On April 19, 2016, the Defendant: (a) around 09:57, on the ground that the victim, who was suffering from developmental disability symptoms in the classes of the △△ District of the Child-Care Center, was unable to properly organize play tools, and was laid down on the floor. (b) caused the victim’s arms to be cut down, cut down, cut down the victim’s arms to the bottom, cut down the victim’s arms, cut down the victim’s arms to the end, cut down the victim’s arms to the end, cut down the victim’s arms to the victim, and cut down the victim’s arms to the defendant, and cut down the victim’s arms to escape from the defendant for about 14 days.

Accordingly, the defendant injured the victim.

2) The 2nd preliminary charge

The defendant is a person who works as a disabled teacher at the △△△△△△△△ Child Care Center in Jeju-si.

On April 19, 2016, at around 09:57, the Defendant committed assault, such as: (a) the victim, who was suffering from developmental disability symptoms in the classes of the △△ District of the Child-Care Center on the ground that he was unable to properly arrange play tools, and (b) the victim was laid down on the floor without properly arranging play tools; (c) the victim’s arms were cut down, cut down on the part of the victim; (d) the victim’s arms were cut down, cut down, pushed down the victim’s arms, cut down the victim’s arms, and cut down the victim’s arms to the victim; and (e) the victim was fluened by the victim from the Defendant; and (e) the victim was fluened by the victim’s arms to escape from the Defendant.

Accordingly, the Defendant assaulted the victim as above and suffered approximately 14 days of treatment on the right side in need of treatment.

B. Determination

1) Comprehensively taking account of the following facts and circumstances acknowledged by the evidence duly adopted and investigated by the lower court, it is difficult to view that the Defendant intentionally inflicted an injury on the victim, or that the Defendant intentionally assaulted the victim and inflicted an injury on the victim, was proven beyond reasonable doubt, and there is no other evidence to acknowledge otherwise.

① A series of actions by the Defendant, at the time and place specified in each of the facts charged, appears to have occurred in the process of raising the victim using dynasium without properly arranging play tools. However, it cannot be deemed that there is a correct answer as to what method is the most appropriate for the Defendant to receive the child suffering from suffering from developmental disability as the victim. Unless the Defendant and the same infant care teacher do not engage in any specific harmful act, such as when the child was injured or going by the dynasium, it should be very careful to apply the rate of injury or bodily injury under the Criminal Act to the crime of injury or injury caused by the act or consequence committed in the course of raising the dynasium for the children with developmental disability. In other cases, the infant care teacher cannot give lessons only in a passive manner against the children with developmental disability, which eventually results in neglecting the children with developmental disability.

② There may be room to view that the Defendant, while getting off the victim’s arms, committed a somewhat excessive act by getting off the victim’s arms or pushing the victim’s arms, etc. However, the upper part of the victim’s arms does not occur in the process of getting off the victim’s arms or pushing the victim’s arms, but rather, it appears that the Defendant was in the process of getting off the victim’s arms when the Defendant and the victim are seated down at the victim’s seat. Accordingly, it is difficult to view that there exists a proximate causal relationship between the Defendant’s act of getting off the victim’s arms or the act of threateninging the victim’s arms and the injury.

③ The wife suffered by the victim can be confirmed by himself/herself on the right side of the victim. In the investigative agency, the reason was determined by the defendant to be the upper part of the victim's arms, and the defendant changed from the court below to the upper part of the victim's arms through the fact inquiry (the trial record No. 155 pages) about the Jeju Hospital. The upper part of the victim's arms, which occurred from the victim's arms, seems to have been difficult to recognize the defendant's intention at the time of injury or assault in light of the circumstances where the victim suffered the wife and the series of acts of the defendant and the victim, etc., and there is no data to acknowledge otherwise.

2) If so, each of the ancillary facts charged should be found innocent under the latter part of Article 325 of the Criminal Procedure Act because there is no proof of facts constituting a crime. However, as long as the judgment of the court which acquitted the primary facts charged is maintained, the judgment of the court below is not to be pronounced

5. Conclusion

Therefore, the prosecutor's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Park Han-hee (Presiding Judge) Promotion