2014No2557 Injury by occupational negligence

A

Defendant

Dogyoung (Public Prosecution) and private trial (public trial)

Public-service Advocates

Suwon District Court Decision 2013Gohap3213 Decided April 28, 2014

oly 10, 2014

The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. Error of mistake or omission of judgment

(1) The Defendant did not have any knife the two arms of the victim E (hereinafter referred to as “victim”). (2) The Defendant’s act of getting the victim’s arms together with his arms is to prevent the occurrence of danger and safety, and the Defendant did not violate the duty of care as childcare teachers.

(3) There is no causal link between the defendant's act and the victim's injury.

(4) Nevertheless, the lower court found the Defendant guilty of the instant facts charged by misunderstanding the facts, and omitted judgment as to whether there was a causal link between the Defendant’s act and the injury suffered by the victim.

B. Legal principles

(1) The Defendant’s act constitutes self-defense or legitimate act.

(2) Nevertheless, the lower court found the Defendant guilty of the instant facts charged by misapprehending the legal doctrine.

2. Determination

A. Judgment on the assertion of mistake of fact

(1) According to the evidence and records duly adopted and examined by the court below, the following facts are recognized.

At around 09:30 on August 13, 2013, the Defendant, who is an infant care teacher, was in mixed infant care for children within the C Child Care Center located in Young-gu, Young-gu, Young-si, Young-si, and the victim took an excessive action against others. The Defendant in the Republic of Korea was in double arms of the victim in order to restrain the victim. The significance of the Defendant in double arms is two to three meters.

In addition, the victim continued to have the victim in the room, and the head of the above child-care center brought the victim in the room.In addition, the victim complained of the pain of the left elbow, and the defendant took the victim to the hospital according to the direction of the president, and the victim was found to have escaped from the left elbel of the victim.

(E) The Defendant prepared and delivered to the mother of the victim a letter stating that he will be held liable if the victim’s left arms are deprived of.

In addition, there is no fact that the victim had been deprived of the same part before the case.

(2) According to the evidence and records duly adopted and examined by the court below, the following circumstances are acknowledged. The possibility that the victim was deprived of his arms with the young child under the age of 3 seems to be imminent, and the victim's physical contact with the victim at the time of the instant case seems to have been broken out with the external force on the left part elbel of the victim at the time of the instant case. A person who was or is likely to have been physically contacted with the victim at the time of the instant case is the principal of the Defendant and the child care center. Since the Defendant asserts that he was seated with the victim as he was her mother, there was a physical contact with the victim, and the president went out of the victim after the president, and there was a possibility of a physical contact with the victim. However, the Defendant was able to commit excessive behavior and seled so as to restrain the victim, and the president was more likely to have become a victim with the Defendant's behavior, and thus, the victim's physical contact with the victim was much more likely than the victim out of the Republic of Korea.

C. The defendant asserts that the victim did not appeal the certificate of the left part of his own possession while he was in his possession. However, the victim is likely to not appeal the certificate of the sale because he was in a situation where he was forced to restrain his behavior from the defendant at the time.

(3) We examine the Defendant’s assertion by taking account of the aforementioned facts and circumstances.

(A) The Defendant asserts that the Defendant did not hold the Victim’s arms. However, the Defendant did so in an excessive behavior, and did so so in order to restrain the victim, so the Defendant appears to have exercised a certain degree of tangible force, and it is deemed that the exercise of force was inevitable to the extent that it would have been able to use the expression “for example, the degree of the physical force that the Defendant used by an adult who is an infant in the age of three.” The Defendant asserts that there was no violation of the duty of care as a childcare center childcare teacher.

However, in the case of young children, they are familiar with protecting themselves independently because they are physically or mentally mature, so child care teachers of child care centers who care for such young children have a duty of care to protect and rear young children healthy and safely, and even if the victim took excessive action, if the defendant exercised considerable tangible power to the extent that he/she suffered injury, the defendant cannot be deemed to have fulfilled his/her duty of care as child care teachers.

(C) The Defendant asserts that there is no causal relationship between his act and the injury suffered by the victim. However, as seen earlier, it appears that the type of force that the Defendant came into the victim’s arms at the time when she gets her arms up to 2-3 meters, appears to have been considerable, and that there seems to be no possibility for the victim to suffer bodily injury that the victim was deprived of her arms due to other factors than the Defendant’s act. Therefore, it is determined that the causal relationship between the Defendant’s act and the injury suffered by the victim is recognized.

(4) Therefore, the defendant's above mistake of facts is without merit.

B. Determination as to the assertion of omission of judgment

(1) On the other hand, the court below found the defendant guilty of the crime against the defendant, and judged indirectly as to whether there was a causal relationship between the defendant's act and the injury suffered by the victim by finding the defendant guilty, and whether this part of the defendant's assertion cannot be seen as "the reason why the crime was committed in accordance with the law, or a statement of fact that is the reason why the punishment is aggravated or mitigated" under Article 323 (2) of the Criminal Procedure Act, and therefore, it is not necessary to separately determine the court below's decision by clearly stating this. (Notwithstanding this, the court below rejected this part of the defendant's assertion on the grounds that "the judgment of the defendant and the defense counsel's assertion" is "the judgment of the defendant

(2) Therefore, the Defendant’s allegation of omission in judgment is without merit. Determination of misapprehension of legal principles is without merit.

(1) Determination on the assertion of self-defense

(In order to establish self-defense under Article 21 of the Criminal Act, the act of defense must be socially reasonable, taking into account all specific circumstances, such as the type, degree, and method of infringement of the legal interest infringed by the act of infringement, the complete completion of the act of infringement, and the type and degree of the legal interest to be infringed by the act of defense (see, e.g., Supreme Court Decision 92Do2540, Dec. 12, 1992).

B. Examining the facts and circumstances seen earlier in light of the aforementioned legal doctrine, it cannot be deemed that there was an infringement of the Defendant’s life and body at the time of the instant case, and it is difficult to view the Defendant’s behavior as an act of social defense.

(2) Determination as to the assertion of justifiable acts

The court below rejected the defendant's assertion under the title of "the judgment on the defendant's and defense counsel's assertion" in the judgment of the court below. The court below's determination is just in light of the evidence and records duly adopted and examined by the court below.

(3) Therefore, the defendant's above misapprehension of legal principles is without merit.

3. Conclusion

Therefore, the defendant's appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act on the grounds that the appeal by the defendant is without merit.

presiding judge, judges, vibration

Judges Lee Jae-jin

Judges Roster.