Defendant

Prosecutor

Yellow studio (prosecution) and Kim Jong-Un (public trial)

Attorney Han-chul (Korean National Assembly)

Incheon District Court Decision 2017Gohap70 Decided June 23, 2017

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

In full view of the legislative purpose, provisions, etc. of relevant Acts and subordinate statutes, such as the Animal Protection Act, etc., the act of killing animals falls under “the act of killing animals by cruel methods, such as hanging trees,” and itself, but the illegality is eliminated if the method and procedure of slaughter prescribed in the Livestock Products Sanitary Control Act, etc. are complied with.

Since the Defendant only slaughtered the hacks with the flow of electricity, and cannot be deemed to have complied with the methods and procedures for slaughter under relevant Acts and subordinate statutes, such as the Livestock Products Sanitary Control Act, it is reasonable to view that the Defendant’s act constitutes “the act of killing by cruel methods, such as hanging trees.” Nevertheless, the lower court acquitted the Defendant of the facts charged in this case solely based on its stated reasoning. In so doing, it erred by misapprehending the legal doctrine

2. Summary of the facts charged and the judgment of the court below

A. Summary of the facts charged

The Defendant is a person who operates a dog farm under the trade name of “○ farm” in Kimpo-si ( Address omitted). No one may kill an animal by cruel means. Nevertheless, the Defendant, from around 2011 to July 2016, when putting a dog into a slaughter facility located in the above “○ farm”, she slaughtered 30 dubs per year, such as slaughter of cattle with the flow of electricity by breaking it on the opening nes.

B. The judgment of the court below

In full view of the relevant Acts and subordinate statutes, such as the Animal Protection Act, the Enforcement Rule of the Animal Protection Act, the Livestock Products Sanitary Control Act, the Enforcement Rule of the Livestock Products Sanitary Control Act, and the Animal Butchery Act, the lower court determined that ① the slaughter of animals prescribed by the Livestock Products Sanitary Control Act by the method of slaughter (in particular, by the previous slaughter method) does not constitute “cruel method” unless there are special circumstances, and furthermore, even if a dog is not livestock as prescribed by the Livestock Products Sanitary Control Act, it does not constitute “cruel method” even if a dog is slaughtered by the slaughter method as prescribed by the Animal Protection Act.

Furthermore, the lower court found the Defendant not guilty of the facts charged of the instant case on the grounds that, in light of the circumstances leading up to the death of a dog, the circumstances leading up to the death of a dog, the tools and methods used for the death of a dog, etc., the Defendant appears to have immediately slaughtered a dog by the method of killing the dog, and the evidence submitted by the prosecutor alone is insufficient to recognize that the Defendant slaughtered a dog by an inhuman method, such as causing special unnecessary pain compared to the slaughter method for other animals.

3. Judgment of the court below

A. Interpretation of Article 8(1)1 of the Animal Protection Act

1) Prosecutions by prosecutors

The prosecutor prosecuted the defendant by applying Article 46(1) and Article 8(1)1 of the Animal Protection Act to the defendant. In other words, the defendant's act constitutes "the act of killing an animal by cruel methods, such as hanging the animal."

2) Whether the Animal Protection Act prohibits “homicide of an animal” itself

A) The purpose of the Animal Protection Act is to protect the lives of animals, ensure safety, and promote welfare of animals, and to contribute to cultivating people’s sentiments, such as respect for the lives of animals (Article 1).

B) Under Article 2 subparag. 1-2 of the Animal Protection Act, the term “animal abuse” is defined in Article 8(1) of the same Act, and Article 8 Subparag. 1 of the same Act prohibits “homicide by cruel methods, such as hanging trees, etc.” (Article 1) and “homicide by death by a specific method, etc.” (Article 2(1) of the same Act (Article 2 subparag. 2) of the same Act does not prohibit “homicide by death by a specific method, etc.” and “homicide by a specific method, etc.” (Article 2 subparag. 2) of the same Act does not prohibit any act of homicide by using instrument and medicine. In addition, the same does not include the act of homicide by using instrument and medicine (Article 8(2) of the same Act).

On the other hand, Article 8(3) of the Animal Protection Act prohibits “an act of catching and selling, or killing an abused animal” against lost or abandoned animals and abused animals under Article 14(1)1 and 2 of the same Act (Article 46(1) of the Animal Protection Act provides that a person who violates Article 8(1) and (3) of the same Act shall be punished by the same statutory penalty) and Article 8(4) of the same Act provides that “the owner, etc. shall not abandon an animal.”

C) Article 10(1) of the Animal Protection Act provides that “All animals shall not be slaughtered in a cruel or cruel manner. No unnecessary pain, fear, or stress shall be inflicted on the slaughter process.” Article 10(2) of the same Act provides that “When an animal is dead in accordance with the Livestock Products Sanitary Control Act and the Prevention of Contagious Diseases Act, the pain shall be minimized by using the methods prescribed by Ordinance of the Ministry of Agriculture, Food and Rural Affairs, such as gas and electric homicide, and shall go beyond the next slaughter stage without consciousness.” Article 10(3) of the same Act provides that “Except for the cases of paragraphs (1) and (2), where an animal is inevitably killed, the method that can minimize suffering shall be observed.”

D) Generally, there is a lot of room to regard “the act of killing” as the most serious “act of abuse.” However, it is difficult to deem that “the act of abuse” itself includes the meaning of “the act of killing or treating with cruel treatment.” Furthermore, in light of the legislative purpose and contents of the Animal Protection Act as seen above, the Animal Protection Act clearly separates from “the act of killing” and “the act of cruelty.” Furthermore, it is bound to interpret that only the act of killing or killing animals is punished by “the act of killing or injuring animals” rather than by the owner, etc.

In this case, since the Defendant appears to have slaughtered a dog at the request of the owner or owner, the issue is whether the method of slaughter constitutes “cruel method” or not.

3) The meaning of “cruel method” under Article 8(1)1 of the Animal Protection Act

A) Criteria for interpreting “cruel methods”

When the concept of a certain law is different and it is possible to interpret several within the framework of the language, the interpretation consistent with the Constitution shall be chosen in order to form a uniform legal order with the Constitution as the highest law, and it is the general legal principle of the Constitution that excludes the interpretation that may result in unconstitutional consequences, and that the constitutional and positive aspect should be examined (see Supreme Court Decision 2004Do7488, Jan. 27, 2005, etc.).

The prior meaning of “cruel” is that “no recognition exists, and the concept of judicial precedents have yet to be established.” Moreover, the evaluation of “cruel” is a very subjective and relative concept, and the act of killing an animal essentially includes “cruelness” and may cause unconstitutional consequences because the scope of punishment is too wide or the standards for punishment are too unclear. Therefore, in interpreting “cruel method” in this context, it shall be extremely limited and interpreted so as not only accords with the Animal Protection Act but also with the language and interpretation of the relevant Acts and subordinate statutes, but also so as not to violate the strict interpretation of penal laws.

B) The “uncruel method” method of killing an animal

As seen earlier, Article 8(1)1 of the Animal Protection Act does not prohibit the owner of an animal from killing the animal itself, and Article 8(1)1 of the Animal Protection Act prohibits the act of killing the animal by “cruel methods, such as hanging the animal.” Thus, this is ultimately premised on the existence of “uncruel methods” which kill the animal. The review of “uncruel methods” can be seen as a consequence of restrictive interpretation of “cruel methods.”

(1) Relevant statutory provisions

(A) Article 8(1)1 of the Animal Protection Act provides that “a person spawning a tree in the cruel manner.” Article 10 of the same Act provides that “All unnecessary pain, fear, or stress shall not be inflicted during the slaughter process” (Article 1) and “a person shall minimize spawns” (Articles 2 and 3).

(B) In order to promote the sanitary control and the improvement of the quality of livestock products, the Livestock Products Sanitary Control Act aimed at contributing to the sound development of the livestock industry and the improvement of public health by prescribing matters necessary for the livestock raising, slaughter, and treatment, and the processing, distribution, and inspection of livestock products, does not include a dog in livestock (Articles 1, 2 subparag. 1, and 4 of the Livestock Products Sanitary Control Act). On the contrary, Articles 1, 2 subparag. 1, and 4 of the Livestock Products Sanitary Control Act stipulate a dog to contribute to the development of the livestock industry, increase the income of livestock farmers, the Livestock Industry Act aimed at the stable supply of livestock products, or the improvement of public health by preventing the spread of contagious animal diseases (Article 2 subparag. 1 of the Livestock Industry Act, Article 2 subparag. 1 of the Enforcement Rule of the Livestock Industry Act, Article 2 subparag.

(C) Article 2 of the Enforcement Rule of the Livestock Products Sanitary Control Act provides for “the standards for the slaughter and treatment of livestock and the collection of milk” under Article 4 of the Livestock Products Sanitary Control Act. Of livestock under the Livestock Products Sanitary Control Act, the method of slaughter for sprinks other than mos among livestock under the Livestock Products Sanitary Control Act provides for “the sprinks Act, the sprinks Act, and the CO2 gas Act, etc.

(D) Article 10(1) of the Animal Protection Act provides that “The Agricultural and Forestry Quarantine Service Regulations (Public Notice No. 2016-77) shall apply only to cattle, pigs, chickens, and ducks (Article 3). However, with respect to the characteristics of animals slaughtered to persons engaged in slaughter business, to minimize the suffering of animals during slaughter process (Article 4) (Article 5 and 6), the standards for lower-age facilities, mooring facilities, etc. (Article 7-9), and the matters to be observed for correction, saving, and transfusion (Article 7-9). In particular, with respect to the method of saving animals on pigs, the former methods of saving animals shall be at least 1.25A current at any voltage, which shall be at least two to four seconds (Article 8(3)1 related to attached Table 8(1)).”

(2) The above provisions on the slaughter method of livestock do not directly apply to dogs. However, in addition to the legislative purpose, purport, and content of the above relevant statutes, the Animal Protection Act prohibits only death by a certain method, etc. without prohibiting the slaughter itself by an owner, etc., there is considerable room to regard it as constituting “uncruel method” in a case where minimizing suffering by the slaughter method stipulated in the relevant statutes.

C) The meaning of “cruel methods”

In full view of the aforementioned various circumstances, “cruel method, such as breaking trees” under Article 8(1)1 of the Animal Protection Act shall be strictly construed only in such a manner that it is obviously recognized that the occurrence of suffering, fear, and stress (hereinafter collectively referred to as “commencing, etc.”) of an animal suffering in the course of the death of an animal by hanging at least the trees.

Meanwhile, barring any special circumstance, it cannot be readily concluded that an animal falls under “cruel methods” in a case where the relevant industry generally accepted or where an employee of the industry does not take the method of slaughter, which is easily recognizable. However, in the event that the method of slaughter of an animal or any other similar method is used as prescribed by the relevant statutes, barring any special circumstance where it is obvious that the animal would have much much pain compared to the slaughter in accordance with the methods and procedures prescribed by the relevant statutes, and thus, it reaches the degree of suffering, etc. from the event that the animal died by hanging trees, barring special circumstances.

B. Determination on the instant case

1) According to the records, the Defendant can be found to have slaughtered a dog by cutting cattle with the flow of electricity on a farm operated by the Defendant in the manner of cutting cattle into a dunes. Such a method is a kind of method of cutting off or killing the head of an animal, such as the Animal Protection Act and other relevant laws and regulations.

2) In the instant case, there is no evidence to support the fact that there was a “uncruel slaughter method” generally accepted in the relevant industry or that there was a “uncruel slaughter method” in which employees of the industry are easily informed. Furthermore, as to whether the methods and procedures for the slaughter method, etc. used by the Defendant may be referred to as “cruel methods” by treating them in comparison with the methods and procedures prescribed by the relevant laws and regulations by giving more pain to the dog compared with those prescribed by the relevant laws and regulations, there is no evidence submitted by the prosecutor alone; the size, contents, and methods of operation of the Defendant’s farm; what is the size, method of operation; what is the correction used by the Defendant; what is the method used by the Defendant; whether the number of dogs used by the Defendant flowed to a certain degree of electricity (at least 1.25A under the Animal Butchery Regulations); whether the dog was cut back or killed; whether the method used by the Defendant went beyond the next stage is more and more than the method used by the Defendant.

3) On the other hand, the prosecutor asserts that the Defendant’s satisfying of the satisfy that the satisfy flow of electricity without complying with the matters to be observed under the relevant laws and regulations can not be deemed as slaughter pursuant to the satisfying Act, since the Defendant died of the satus. However, whether the satisfying method constitutes “cruel method” should be determined depending on whether the satisfy sats were satfy, not whether the methods and procedures for slaughter were performed, or whether the satisfys were suffering from pains

4) Ultimately, it is difficult to readily conclude that the evidence submitted by the prosecutor alone died of the Defendant with the “cruel method” under Article 8(1)1 of the Animal Protection Act, and there is no other evidence to acknowledge this. The judgment of the court below to the same purport is just and acceptable, and there is no error of law by misunderstanding the legal principles, which affected the conclusion of the judgment, contrary to the prosecutor’s assertion.

4. Conclusion

Since the prosecutor's appeal is without merit, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Lee Jong-hoon (Presiding Judge)

(1) According to the Standard Korean Language Ambassador of the National Institute of Korean Language, slaughter is called “influence of animals,” and slaughter is called “influence of livestock to obtain meat,” and the term “influence of livestock to obtain meat.” hereinafter, the term is separately used on the basis of the difference in the above purport, and the language and text of the relevant statute is used as they are.