A. The meaning of the act that does not violate the social rules stipulated in Article 20 of the Criminal Act

(b) Whether a doctor's act of abortion with the commission or consent of a woman is not contrary to the social norms

(c) The meaning of Article 8 (1) 5 of the Mother and Child Health Act "a case where the maintenance of pregnancy seriously harms or threatens to harm the health of the mother for health or medical reasons"

D. Whether imprisonment with prison labor has been mitigated at the appellate court that appealed only by the Defendant, but the suspension of qualification is subject to disadvantageous changes if the suspension of qualification is added

A. An act that does not go against the so-called social norms, which is not punishable under the Criminal Act, is deemed to fall under the requirement for the composition of a crime in light of the language and text of the provisions of the Act, even if it appears to fall under the requirement for the composition of a crime, such illegality shall be excluded only when it appears to be extremely normal living form and within the scope of historical social order created. Thus, a certain legal provision is recognized as not illegal due to the development of society, its punishment is not value, and it is considered to be a violation of social justice, or it is possible to evaluate that the act was conducted as a means of social reasonableness to realize it in light of the purpose and value of the society pursued by the state law and order.

B. A human life begins from the time of pregnancy, and a reborn fetus has dignity and value as a new source of existence and personality, and should be protected so as not to be infringed upon regardless of whether he or she was aware of it or whether he or she can defend himself or herself. Thus, even if the Mother and Child Health Act permits artificial abortion with the consent of pregnant women and their spouse in cases where special medical, biological or ethical adaptation of the Mother and Child Health Act is recognized, even if a doctor permits artificial abortion with the consent of a pregnant woman and his or her spouse, it cannot be said that all abortions are normal acts upon request or consent of a woman, and it cannot be said that a doctor would not be subject to punishment for the crime of occupational abortion under Article 270(1) of the Criminal Act.

C. The case where the maintenance of pregnancy, which is an artificial abortion surgery permitted under Article 8(1)5 of the Mother and Child Health Act, is, or is likely to, seriously harm the health of the pregnant woman for health and medical reasons means the case where the maintenance of pregnancy has caused serious danger to the life and health of the pregnant woman and where it is deemed necessary to save the life and health of the pregnant woman even if the pregnant woman's life and health are recovered, and such determination is delegated to the sound and careful judgment of the doctor who is in charge of the treatment act.

D. Even if the criminal facts added in the appellate court which only the defendant appealed are found guilty, and the suspension of qualification should be concurrently imposed in addition to imprisonment, the sentence imposed in the appellate court is mitigated than the first instance court, but if the suspension of qualification was concurrently imposed, the sentence heavier than the first instance court will be sentenced.

A. Article 20 of the Criminal Act: Articles 20 and 270(1) of the Criminal Act; Article 8(1)5 of the Mother and Child Health Act; Article 368 of the Criminal Procedure Act

A. Supreme Court Decision 82Do357 delivered on February 8, 1983, 66Do105 delivered on September 6, 1966, and 79Do2105 delivered on March 25, 1980

Defendant 1 and one other

Defendants

Attorney Park Jong-jin, Attorneys Park Jong-jin

Seoul High Court Decision 81No2196 delivered on July 20, 1984

The part of the lower judgment against Defendant 1 is reversed, and that part of the case is remanded to the Seoul High Court.

Defendant 2’s appeal is dismissed.

1. The defendants' grounds of appeal are examined.

An act that does not go against the so-called "social norms" under the Criminal Code, even if it appears that the act falls under the requirement for the formation of a crime under the language and text of the provisions of the Act, is unable to be punished because its illegality is early and only when it appears that it is within the scope of historical social order created. It is recognized that an act subject to punishment is not unlawful due to social development, its punishment is not value, and it is thought that it is against social justice, or it is possible to evaluate that an act was conducted as a means of social reasonableness in light of the objective value pursued by the state law and order, it does not violate the social norms (see Supreme Court Decision 82Do357, Feb. 8, 1983). Even if it appears that the life of a pregnant woman starts from the time when it starts, and the pregnant woman's fetus has new existence and character, and thus, it is not permissible to protect the health of the people and health of the pregnant woman under the Constitution, and thus, it is not permissible to protect the healthy will of the people and the healthy will of the mother and Child Health Act.

Therefore, the appeal that the abortion is dismissed because it does not go against the social norms can not be accepted as an independent opinion.

2. The defendant 1's private defense counsel's grounds of appeal are examined.

A. The case where the maintenance of pregnancy, which is an artificial abortion surgery permitted under Article 8 (1) 5 of the Mother and Child Health Act, is extremely harmful to the health of the pregnant woman for health reasons or is likely to be harmful to the health of the pregnant woman" means that the maintenance of pregnancy has caused serious danger to the life and health of the pregnant woman and that artificial abortion surgery is inevitable to save the life and health of the pregnant woman, and such determination is entrusted to a sound and careful judgment of the doctor who is pregnant for treatment (in particular, on June 15, 1980, the investigation record). But according to the records, the defendant 1 found that there is no concern that the pregnant woman might be allowed to undergo artificial abortion treatment for a considerable period of time on the following day by using the same time as that of the pregnant woman under Article 8 (1) 5 of the Mother and Child Health Act, and that there is no other problem that the pregnant woman's health condition might have been seriously deteriorated without any further treatment for the pregnant woman's own consent and there is no other reason that the above abortion might be any more than the abortion.

B. In addition to the ancillary facts of the prosecution, if it is deemed that there is a possibility that the disadvantage of the defendant would be increased in the case where the prosecutor is permitted to revise the indictment, the court may decide ex officio to suspend the procedure of trial for a period necessary to have the defendant prepare for defense without the request of the defendant or his defense counsel. However, as acknowledged by the record, the principal facts of the case also contain the death of the fetus discharged from the mother body due to abortion operation by the commission of the non-indicted, and therefore, the defendant 1 and his defense counsel were examined about the abortion, and the defendant 1 and his defense counsel were served a duplicate of the prosecutor's written application for the revision of the indictment on July 4, 1984 on the date of the 16th trial of the same year, and there is no objection or request for suspension of the procedure of trial, and thus there is no evidence that there is no possibility that the disadvantage of the defendant would be increased as long as the pleading has been closed.

C. In the appellate court which appealed only the defendant's extra charges, only the extra charges additionally added to the conjunctive charges are found guilty, and in the case where the suspension of qualification should be concurrently imposed in addition to imprisonment, the sentence imposed in the appellate court was mitigated to the first instance court, but the suspension of qualification was concurrently imposed, a disadvantageous change is sentenced to more severe punishment than the first instance court (see Supreme Court Decision 66Do1005 delivered on September 6, 196, Supreme Court Decision 79Do2105 delivered on March 25, 1980). Accordingly, in the first instance court, the defendant who was sentenced to a suspended sentence of five years for five years due to attempted murder was found guilty only for the crime of abortion on duty, which is the changed ancillary facts of the previous defendant, and the suspended sentence of qualification for one year, as well as for a suspended sentence of one year, has been modified to a disadvantage of the above defendant, which affected the conclusion of the judgment in this case. Therefore, the argument is justified.

3. Defendant 2's grounds of appeal are examined.

If the evidence of the court below is examined in detail by comparing the records, it can be sufficiently recognized that the defendant 2 also participated in the crime of occupational abortion, and there is no violation of the rules of evidence, such as the paper. There is no error of law in violation of the rules of evidence.

4. Therefore, the part of the judgment of the court below against Defendant 1 shall be reversed and the case shall be remanded to the court below. Defendant 2's appeal shall be dismissed. It is so decided as per Disposition by the assent of all participating judges.

Justices Jeong Jong-tae (Presiding Justice)