Requirements for the establishment of the crime of abandonment / Whether the obligation of support between husband and wife is included in the “legal protection obligation” referred to in Article 271(1) of the Criminal Act concerning the crime of abandonment (affirmative)

In order to establish the crime of abandonment resulting in the death of a person by committing a crime of abandonment, the crime of abandonment must first be established. As such, as stated in Article 271(1) of the Criminal Act concerning the crime of abandonment, an offender falls under “a person who has a legal or contractual obligation to protect a person who needs aid due to labor, disease, or other circumstances,” and the legal duty of protection refers to a husband and wife’s support duty based on Article 826(1) of the Civil Act.

Articles 271(1) and 275(1) of the Criminal Act; Article 826(1) of the Civil Act

Defendant 1 and one other

Defendants

Law Firm Shin & Yang, Attorneys Kim Sung-chul et al.

Seoul High Court Decision 2017No1950 decided February 12, 2018

All appeals are dismissed.

The grounds of appeal are examined.

1. Defendant 1

(a) Injury insurance proceeds and pre-tax loan fraud;

Of the facts charged against Defendant 1, the lower court upheld the first instance judgment convicting Defendant 1 of all the charges regarding the fraud of injury insurance proceeds and deposit money lending. Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by misapprehending the legal doctrine on fraud and joint principal offense

(b) Abandonment;

(1) In order to establish the crime of abandonment resulting in the death of a person by committing a crime of abandonment, the crime of abandonment should first be established. As such, as stated in Article 271(1) of the Criminal Act concerning the crime of abandonment, an offender falls under “a person legally or contractually obligated to protect a person who needs aid due to labor, disease or other circumstances,” the legal duty of protection refers to a husband and wife’s duty of support based on Article 826(1) of the Civil Act.

Article 812(1) of the Civil Act provides, “Marriage shall take effect upon filing a report in accordance with the provisions of the Act on the Registration, etc. of Family Relationship.” The main text of Article 826(1) of the Civil Act provides, “A father shall live together, support and cooperate with each other.” Article 815 Subparag. 1 of the Civil Act provides that the marriage shall be null and void in cases where “when the parties have not agreed to marry.” However, the foregoing reason for invalidation of marriage refers to cases where the parties have no intention to make any mental or physical combination recognized as a husband and wife under the social concept.

(2) In light of the following circumstances, the lower court affirmed the first instance judgment convicting Defendant 1 of abandonment death on the ground that the legal duty to protect the victim, who is a spouse, is recognized, because it is difficult to deem Defendant 1 to have no intention to marry from the time of reporting

(A) Defendant 1’s assertion that he stolen the victim’s identification card and reported the victim’s future marriage to the injured party cannot be accepted.

(B) There is no circumstance to deem that the above Defendant’s statement based on the premise that the investigative agency had intention to marry was false. It cannot be deemed that the said Defendant reported a marriage with the intent to receive the death benefit that the victim was the insured.

(C) The above Defendant reported the marriage with the victim, and actively expressed that the hospital and the insurance company were the husband of the victim. The above Defendant served as the guardian of the victim immediately before the victim’s death, and the victim also sought protection.

(D) The victim appears to have followed the above Defendant’s direction in the process of changing the beneficiary of death benefit from himself to the above Defendant.

(3) Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the duty to protect in marriage invalidation and abandonment, contrary

C. Unreasonable sentencing

Examining various circumstances, such as Defendant 1’s age, character and conduct, environment, relationship with the victim, motive, means and consequence of the crime, the circumstances after the crime, etc., as indicated in the record, even when considering the circumstances alleged by the above Defendant, there is no obvious reason to recognize that the sentence of the lower court sentenced to 12 years to the above Defendant is too unreasonable.

2. Defendant 2

Of the facts charged against Defendant 2, the lower court upheld the first instance judgment convicting all Defendant 2 of the injury insurance proceeds and loan fraud. Examining the reasoning of the lower judgment in light of 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 fraud and joint principal offense, contrary to what is alleged in

Only in cases where death penalty, life imprisonment, or imprisonment with or without labor for not less than ten years is imposed, an appeal on the ground of unfair sentencing is allowed (Article 383 subparag. 4 of the Criminal Procedure Act). Therefore, in this case where Defendant 2 was sentenced to a more minor sentence, the argument that the sentence is too unreasonable is not legitimate grounds for appeal.

3. Conclusion

The Defendants’ final appeal is dismissed in entirety as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)