The meaning of Article 17 subparagraph 3 of the former Child Welfare Act, which provides for a prohibited act as one of the prohibited acts in Article 17 subparagraph 3 of the former Child Welfare Act, "an abuse that causes bodily harm to a child"

Article 17 Subparag. 3 of the former Child Welfare Act (amended by Act No. 12361, Jan. 28, 2014) provides that “act of abusing a child’s body” as one of the prohibited acts. Here, “injury to a child’s body” refers to an act of causing a negative physical change to the extent corresponding thereto even if it does not reach the degree of “injury” causing a complete physical injury or an injury to physiological function by exercising physical force against a child.

Subparagraph 3 of Article 17 and Article 71(1)2 of the former Child Welfare Act (Amended by Act No. 12361, Jan. 28, 2014)

Defendant 1 and one other

Prosecutor

Law Firm Han, Attorneys Sung-hee et al.

Daegu District Court Decision 2014No2526 Decided April 23, 2015

All appeals are dismissed.

The grounds of appeal are examined.

1. Article 74 of the former Child Welfare Act (amended by Act No. 12361, Jan. 28, 2014) provides that “If a representative of a corporation, or an agent, employee, or other servant of a corporation or individual commits an offence under Article 71 in connection with the business of the corporation or individual, not only shall such offender be punished, but also the corporation or individual shall be punished by a fine under the relevant provisions: Provided, That this shall not apply where such corporation or individual has not been negligent in giving due attention and supervision concerning the relevant duties to prevent such offence.” In such joint penal provisions, whether a corporation or employee, etc. has neglected to exercise due diligence and supervision over the relevant duties shall be determined by comprehensively taking into account all the circumstances related to the relevant offence, namely, the legislative purport of the relevant Act; the degree of infringement of legal interests anticipated to be a violation of punishment provisions; the purpose of preparing both punishment provisions as to the relevant violation; the degree of actual damage or consequence therefrom; the business size of the corporation and the possibility of supervision over the corporation or the actual measures taken by the corporation to prevent such violation (see, etc.).

Based on the circumstances indicated in its reasoning, the lower court reversed the first instance judgment convicting Defendant 1 and acquitted Defendant 1 on the ground that there was no proof of crime regarding Defendant 1’s violation of the Child Welfare Act among the facts charged in the instant case.

Examining the aforementioned legal principles and evidence duly admitted, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules or by misapprehending the legal doctrine on

2. Article 17 Subparag. 3 of the former Child Welfare Act provides that “an act of abuse that causes bodily harm to a child” as one of the prohibited acts. Here, the term “injury to a child’s body” refers to an act of causing a negative change to the body to the extent corresponding thereto even if it does not reach the degree of “injury” which damages the completeness of a child’s body or interferes with physiological functions by exercising physical force against the child.

For the reasons indicated in its reasoning, the lower court determined that Defendant 2 was innocent on the ground that there was no proof of a crime regarding the violation of the Child Welfare Act by abusing the victim’s body against Defendant 2, among the facts charged in the instant case, on the ground that there was no proof of a crime regarding the violation of the Child Welfare Act due to the abuse that

Examining the above legal principles and the evidence duly admitted, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles on “damage to the body.”

3. Meanwhile, the prosecutor appealed against the guilty portion of the judgment of the court below, but there is no indication of the grounds for appeal in the petition of appeal nor any statement of the grounds for appeal in the appellate brief.

4. Accordingly, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)