[1] The meaning of “ emotional abuse” prohibited under the Child Welfare Act and the standard for determining whether such act constitutes such act

[2] In a case where the Defendant, a child care teacher, was indicted of violating the Child Welfare Act (child abuse) on the ground that the Defendant, who was a child care teacher, committed a emotional abuse that may harm the mental health and development of a child by placing about 40 minutes of the school room, by leaving the school room at a level of about 78 cm high from the floor of the Defendant’s inside of the school, and leaving the school room at a level of about 78 cm, and leaving the school room with the body of the Party A and leaving the school room on the window, etc., on the ground that the Defendant committed a dangerous behavior, such as hanging the school frame, the case affirming the judgment below convicting the Defendant on the ground that the Defendant committed emotional abuse of the Party A

[1] In full view of the legislative purpose of the Child Welfare Act (Article 1), basic ideology (Article 2(3)), and Article 3 subparag. 7, and Article 17 subparag. 5 of the same Act, emotional abuse prohibited under the Child Welfare Act refers to mental violence or cruel acts that may harm the mental health or welfare of a child or impede the normal development of mental health, or a risk that may cause such a result. Whether an act constitutes such act shall be determined by comprehensively taking into account the relation between the offender and the child, the relation between the offender and the child; the offender’s attitude toward the child at the time of the act; the age, sex, inclination, mental development and health conditions; the change of the child’s state before and after the act; the place and time of the act; the degree of the act; the circumstances leading to the act; the repetition or period of the act; and the influence of the act on the child’s normal development of mental health.

[2] In a case where the Defendant, a child care teacher, was prosecuted on charges of violation of the Child Welfare Act (child abuse) on the ground that the Defendant, who was a child care teacher, committed a emotional abuse that may harm the mental health and development of the child, committed a 40-minute of the Plaintiff’s emotional abuse (child abuse), on the ground that the Defendant took about 40-minutes above the school principal (10cm x 29cm x 63cm) with a height of about 78cm from the floor of the Defendant’s inside of the school, and took about 78cm above the school principal (10cm x 29cm x 63cm) and did so, and took about 40 minutes after leaving the school principal’s body behind the school principal, and did not have any emotional harm to the child’s mental health and development, the case affirming the judgment below finding the Defendant guilty of not only the dangerous act in itself, but also the Defendant’s emotional abuse in light of the following circumstances:

[1] Article 1, Article 2(3), Article 3 subparag. 7, and Article 17 subparag. 5 of the Child Welfare Act / [2] Article 71(1)2 of the former Child Welfare Act (Amended by Act No. 14925, Oct. 24, 2017); Article 17 subparag. 5 of the Child Welfare Act

[1] Supreme Court Decision 2015Do13488 Decided December 23, 2015 (Gong2016Sang, 260)

Defendant

Defendant

Ulsan District Court Decision 2016No1654 decided April 6, 2017

The appeal is dismissed.

The grounds of appeal are examined.

Article 1 of the Child Welfare Act provides, “The purpose of this Act is to guarantee the welfare of a child so that the child may be born healthy and happyly and safely,” while disclosing the legislative purpose thereof, Article 2(3) of the same Act provides, “The interest of the child shall be first considered in all activities relating to the child.” Meanwhile, Article 3 Subparag. 7 of the same Act provides, “No person shall commit emotional abuse against a child that may injure the health or welfare of the child or interfere with the normal development of the child, or abandon or deprive the child’s guardian of the physical, mental, or sexual violence or cruel acts that may cause harm to the child’s health and development.” Article 17 Subparag. 5 of the same Act provides, “No person shall commit emotional abuse against a child that may injure the child’s mental health and development.”

In full view of the legislative purpose, basic ideology, and relevant provisions of the Child Welfare Act, the act of emotional abuse prohibited under the Child Welfare Act refers to acts of mental violence or cruel treatment that may harm the mental health or welfare of a child or undermine the normal development of mental health or that may cause risks to such a result (see Supreme Court Decision 2015Do13488, Dec. 23, 2015). Whether an act constitutes such act ought to be determined by comprehensively taking into account the relation between the offender and the child, the relation between the offender and the child; the offender’s attitude toward the child at the time of the act; the age, sex, inclination, mental development and health conditions; the change of the child’s state before and after the act of the child; the place and time of the act; the degree and manner of the act; the circumstances leading to the act; the repetition or period of the act; and the influence of the act of the child’s act on the normal development of mental health.

For the reasons indicated in its holding, the lower court recognized that the Defendant, a child care teacher, took a duplicative and negative attitude, and 40 minutes above the school principal with a height of 78cc, which is 4 years of age, and that not only was dangerous acts in itself, but also was likely to have supposed the child in the process, and actually did not have the child at the child care center so that the child was complained of mental suffering and did not have the child at the child care center, and found the Defendant guilty of the facts charged in this case.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on child abuse, contrary to what is alleged in the grounds of

Meanwhile, the ground of appeal that the court below erred in the misapprehension of legal principles as to intention is not a legitimate ground of appeal, since the defendant alleged in the court below as the ground of appeal or judged as the subject of judgment ex officio.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Jae-chul (Presiding Justice)