Cases
2020Do1132 Violation of the Animal Protection Act
Defendant
A
Appellant
Defendant
Defense Counsel
Law Firm currently
Attorney Doh-ho, Lee Jin-hee, Lee Jin-hun, Cho Jae-hun, Counsel for defendant-appellant
Judgment of remand
Supreme Court Decision 2017Do16732 Decided September 13, 2018
Judgment of the lower court
Seoul High Court Decision 20182595 Decided December 19, 2019
Imposition of Judgment
9, 2020
Text
The appeal shall be dismissed.
Reasons
The grounds for appeal are determined.
1. Summary of the judgment of remand
The judgment of remanded of this case reversed the judgment of the court below prior to remanding the case, which acquitted the Defendant on the following grounds, and remanded the case to the court below.
A. Whether a “cruel method” is prohibited under Article 8(1)1 of the former Animal Protection Act (amended by Act No. 14651, Mar. 21, 2017; hereinafter “former Animal Protection Act”) ought to be determined not from a subjective standpoint of a specific person or group, but from a perspective of a social average person, objectively and formally, according to social norms.
B. In determining whether a “cruel method” is a “cruel method, comprehensive consideration should be given to the effect that the permit of the relevant slaughter method is against national sentiment, such as respect for life of animals, etc., characteristics of each animal and the degree and duration of suffering that may be experienced due to the slaughter method in question, the age of the animal, social perception, etc.
C. As the lower court, it should have determined whether the Defendant’s act can be deemed as the act of killing the Defendant’s act by cruel methods, in full view of the following: (a) the size of the current with which the Defendant used to slaughter the dog was flowed; (b) the time required for the dog to kill or kill the dog; (c) the specific behavior of the slaughter method using electricity, such as the slaughter place environment; and (d) the body, internal and external symptoms, etc. that may be inflicted on the dog; and (c) the examination result reveals that permitting the slaughter method to be used by the Defendant may affect the national sentiment, such as respect for life of the animal; and (d) awareness of the dog in light of social norms.
2. The judgment of the court below after remand
A. After remanding, the lower court examined the following matters in accordance with the purport of the judgment of remanding. 1) The lower court deliberated on the following: (a) the size of voltage used for slaughter through the Defendant’s examination; (b) the required time to the subsequent death; (c) the specific environment of slaughter places; and (d) the symptoms in the process of slaughter; and (b) the size of voltage supplied to the Defendant’s dog farm through inquiry into the Korea Electric Power Corporation; and (b) the lower court determined the size of voltage supplied to the Defendant’s dog in the process of slaughter. 2) The lower court examined the professors of veterinary colleges as a witness and examined them as well as whether the method of slaughter by the Defendant may cause any harm to this specific person; and (c) whether the method of slaughter by the Defendant may cause immediate and intangible consciousness recognized by a humanitarian method.
B. Based on the above review result, the court determined that the method of slaughter by the defendant for the following reasons constitutes “cruel methods” prohibited under Article 8(1)1 of the former Animal Protection Act, as it does not constitute an humanitarian slaughter method stipulated in the International Convention for the Protection of Animals or the U.S. Medical Association’s guidelines, etc. (2) The method of slaughter of animals does not constitute a cruel method for the following reasons: (i) where animals are slaughtered under the former Slaughtering Act, namely, in a situation where the measures were needed to be taken without awareness; and (ii) the Defendant did not take measures to kill animals in a state where it is necessary, namely, in order to use animals in a timely manner; and (iii) the Defendant did not take measures to ensure that he or she can kill animals in a timely manner; and (iv) the Defendant did not take measures to ensure that he or she can kill animals.
3. Determination
Examining the reasoning of the original judgment in light of the relevant legal doctrine and the evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on “cruel method” under Article 8(1)1 of the former Animal Protection Act, Article 20 of the Criminal Act, and Article 16 of the same Act.
In addition, the part of the "cruel method" under Article 8 (1) 1 of the former Animal Protection Act is not against the principle of no punishment without the law and the principle of clarity. Therefore, the ground of appeal that the above provision is unconstitutional is not accepted.
4. Conclusion
Therefore, the appeal shall be dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Park Jae-young
Justices Noh Tae-tae
Justices Kim Jae-hyung
Justices Min You-sook of the District Court
Justices Lee Dong-won