(영문) 제주지방법원 2017.7.20.선고 2017노118 판결

Comprehensively taking account of the evidence submitted by the prosecutor, it can be sufficiently recognized that the defendant committed physical abuse against the victimized child. Nevertheless, the judgment of the court below which acquitted the victimized child, erred by misapprehending the legal principles.

2. Addition of preliminary facts charged;

In the trial of the political party, the prosecutor added the existing facts charged as the primary facts charged, the ‘inflicting injury' to the name of the first preliminary crime, the ‘Article 257(1) of the Criminal Act' to the applicable provisions of the Criminal Act, and the ‘in the name of the second preliminary crime,' to the name of the second preliminary crime, the ‘in the name of the second preliminary crime,' to the applicable provisions of the Criminal Act, the ‘in the name of the second preliminary crime, Article 262, Article 260(1), and Article 257(1) of the Criminal Act' to the applicable provisions of the Criminal Act, and to the application for modification of an indictment to add the same contents as the stated in Article 4(a)(2) below to the charges

Therefore, although there is a change in the scope of adjudication, the prosecutor's argument of mistake of facts or misapprehension of legal principles is still subject to the judgment of this court in relation to the primary facts charged. 3. Judgment of mistake of facts or misapprehension of legal principles on the primary facts charged.

A. Summary of the primary facts charged

On April 19, 2016, the Defendant: (a) around 09:57 at Jeju Island C, Korea Workers’ Compensation & Welfare Center C classes located at the Korea Workers’ Compensation and Welfare Service Co., Ltd. on April 19, 2016, the Defendant: (b) caused the victim D (e.g., 5 years of age) suffering from developmental disorder to the floor without properly arranging playing implements; (c) caused the victim’s arms to be cut off to the floor by cutting off the part of the victim; (d) caused the victim’s arms to be cut off, pushed down, pushed down the victim; and (e) caused the victim’s arms to go back to the Defendant; and (e) caused the victim’s arms to go out of the Defendant, she pushed off the victim’s arms to the right side, which requires treatment between about 14 days and 14 days.

As a result, the defendant committed physical abuse against a child that may injure the child's body or injure the physical health and development of the child.

B. The judgment of the court below

The court below found the Defendant not guilty of the facts charged in the instant case on the grounds that the evidence presented by the prosecutor alone, based on the evidence presented by the prosecutor, is not sufficient to regard the Defendant’s act as “the Defendant’s physical violence that may harm the health or welfare of the child or impede normal development,” and there is no other sufficient proof, and ② it is difficult to recognize the Defendant’s willful negligence, and it is difficult to view that this part

C. Judgment of the court below

1) Relevant legal principles

In a criminal trial, the burden of proof for the facts constituting an offense prosecuted is to be borne by a public prosecutor, and the conviction of guilt is to be based on evidence with probative value that makes a judge feel true beyond a reasonable doubt. Thus, if there is no such evidence, even if there is doubt for guilt against the defendant, it shall be determined with the benefit of the defendant (see Supreme Court Decision 2006Do735, Apr. 27, 2006, etc.).

2) Determination

Examining the judgment of the court below in light of the above legal principles and closely, it is just for the court below to have judged that the facts charged in this case constitute a case without proof of facts constituting a crime, and it did not err by mistake of facts or by misapprehending the legal principles as alleged by the prosecutor.

4. Judgment on the ancillary charges added at the trial room

A. Summary of each of the facts charged

1) First Preliminary Facts

The defendant is a person who works as a teacher in exclusive charge of disability in the Korea Labor Welfare Corporation C of Child Welfare Center in Jeju City.

On April 19, 2016, the Defendant: (a) around 09:57, on the ground that the victim D (V) suffering from developmental disability symptoms in the class of the above child-care center C at around 09:57, was unable to properly arrange play tools, and was laid down on the floor. (b) made the victim’s arms cut down, cut down on the part of the victim’s arms, cut off the victim’s arms, cut down the victim’s arms, cut down the victim’s arms, cut down the victim’s arms, cut down the victim’s arms, pushed the victim back, pushed the victim’s arms who want to escape from the Defendant, and laid down the victim’s arms to escape from the Defendant for about 14 days to complete the right side in need of treatment. Accordingly, the Defendant injured the victim.

2) The 2nd preliminary charge

The defendant is a person who works as a teacher in exclusive charge of disability in the Korea Labor Welfare Corporation C of Child Welfare Center in Jeju City.

On April 19, 2016, at around 09:57, the Defendant committed assault, such as: (a) the victim D (V) suffering from developmental disability symptoms in the class of the above child-care center C at around 09:57, on the ground that the victim D (V) was unable to properly arrange play tools and was dupened on the floor; (b) the victim's arms was cut down, and then cut down on the part of the victim, and then cutting down the part of the victim's arms, cutting down the victim's arms, cutting down the victim's arms, cutting down the victim's arms, and cutting down the victim's arms to escape from the Defendant.

Accordingly, the Defendant assaulted the victim as above and suffered approximately 14 days of treatment on the right side in need of treatment.

(b) judgment;

1) Comprehensively taking account of the following facts and circumstances acknowledged by the evidence duly adopted and examined by the lower court, it is difficult to view that the Defendant intentionally inflicted an injury on the victim, or that the Defendant intentionally assaulted the victim and inflicted an injury on the victim, and there is no other evidence to acknowledge it otherwise. ① A series of actions by the Defendant committed at the time and place indicated in each of the facts charged by the lower court at issue are likely to have occurred during the process of raising the victim, who durged the durging without properly arranging the playing tool. However, it cannot be deemed that there is a correct answer as to how the method of raising the child suffering from developmental disorder, such as the victim, is most appropriate. Unless the Defendant and the same infant care teacher did not do any specific harmful act, such as the Defendant’s act or consequence that occurred in the course of raising the disabled child, and thus, it should be very careful to deem that the Defendant committed the crime of injury or bodily injury on the ground of the occurrence or consequence of the disability in the Criminal Act, which caused the development of the child as an infant care teacher.

② There may be room to view that the Defendant, while leaving the victim’s arms, committed a somewhat excessive act by falling off the floor of the victim or by pushing the victim with the victim.

However, the upper part of the victim's arms does not occur when the defendant gets off the victim's arms or pushed down the victim's arms, but it appears that the defendant was in the process of cutting off the victim's arms when the defendant and the victim are sitting in opposite to each other. Therefore, it is difficult to view that there is a proximate causal relation between the defendant's act of cutting off the victim's arms or the act of threatening the victim and the injury of the victim.

③ The injured party’s wife can be confirmed by the country where the part of the injured party’s right side is located on the part of the injured party’s right side. In the investigative agency, it is difficult to recognize the injured party’s intent or assault at the time and there is no other preliminary evidence to acknowledge it differently in light of the circumstances where the injured party suffered the injured party’s wife and the series of acts of the accused and the injured party, etc., as seen earlier, the reason was changed to the upper part of the injured party’s arms through the fact inquiry at the court below (the trial record No. 155 pages). The upper part of the injured party’s arms occurred in the process where the injured party gets the arms of the injured party and kids the injured party, and the injured party kids the injured party’s arms, and there is no evidence to acknowledge it differently from the intent of the injured party at the time and the injured party’s body. Accordingly, there is no evidence to prove the facts charged as to each of the facts charged.

5. Conclusion

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