Defendant

Both parties

The Spot Kim (Lawsuit) and the teary (Public Trial)

Attorney Kim Byung-hee (Korean national election)

Chuncheon District Court Decision 2015Ra906 Decided February 2, 2016

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not more than ten months.

Of the facts charged in the instant case, the charge of violating the Child Welfare Act between August 2008 and September 2008 is acquitted.

1. Summary of grounds for appeal;

(a) The defendant (the factual errors);

The defendant did not commit abuse and did not send children to schools because others threatened children.

(b) An inspection;

The sentence of the lower court (ten months of imprisonment) is too unhued and unreasonable.

2. Determination

A. Ex officio determination

Before making a judgment on the grounds for appeal by the defendant and the prosecutor, the judgment of the court below is examined ex officio, and the following grounds for reversal are as follows (However, the defendant's assertion of mistake of facts is still subject to the judgment of the court regardless of the grounds

1) Criminal facts of the judgment below

In a case where individual criminal acts, which are a single comprehensive crime, were committed across the period before and after the amendment of the Act, the Act shall be applied to a single comprehensive crime by applying the new law, which is the law at the time of the termination of the implementation of the crime, without any need to compare the seriousness of the statutory punishment of the new and former Act (see Supreme Court Decision 97Do183, Feb. 24, 1998, etc.). However, in applying the penal provisions for acts before and after the amendment of the Act, "in accordance with the previous provisions," where the amended provisions stipulate transitional provisions, the former provisions shall apply to the acts before the enforcement of the Act, and the amended Acts shall apply to the subsequent acts, respectively (see Supreme Court Decision 2001Do3990, Sept. 25, 2001).

Article 40 Subparag. 2 and Article 29 Subparag. 4 of the former Child Welfare Act (wholly amended by Act No. 1102, Aug. 4, 2011); however, the aforementioned Act was wholly amended by Act No. 1102, Aug. 5, 2012 to Oct. 17, 2012; Article 5 of the Addenda to the Child Welfare Act provides that the former Child Welfare Act (wholly amended by Act No. 1102, Aug. 4, 201); Article 40 Subparag. 2 and Article 29 Subparag. 4 of the former Child Welfare Act (wholly amended by Act No. 1102, Aug. 4, 201; hereinafter referred to as the “Child Welfare Act”) shall apply to the act committed by the Defendant, which was committed by Nonindicted 1; Article 25 of the former Child Welfare Act (wholly amended by Act No. 11010, Aug. 5, 2012; hereinafter referred to as the “Child Welfare Act”).

2) Criminal facts of the judgment below

A) Summary of the facts charged

The summary of this part of the facts charged is that "the defendant, from August 2008 to around September 9, 2008, was suspected that the victim non-indicted 1 (the victim non-indicted 1 (age 8 years old at that time) was eating the baby's body in his/her place of residence within his/her safe city (location omitted), and he/she committed a cruel act that damages the body of the victim as he/she was holding his/her clothes and clothes."

B) Determination

Article 40 Subparag. 2 and Article 29 Subparag. 1 of the former Child Welfare Act (wholly amended by Act No. 11002, Aug. 4, 201) are punished by imprisonment with prison labor for not more than five years or by a fine not exceeding 30 million won under Article 249(1)4 of the Criminal Procedure Act, and the statute of limitations for a public prosecution is seven years pursuant to Article 249(1)4 of the same Act. This part of the public prosecution was instituted on Oct. 27, 2015 and the statute of limitations has expired after seven years have already passed since the criminal act was completed. Accordingly, the court below found the Defendant guilty of this part of the facts charged, while the court below found the Defendant guilty of this part of the facts charged and the remaining crimes in the judgment of the court below as concurrent crimes under the former part of Article 37 of the Criminal Act, and thus, the judgment of the court below is no longer maintained in its entirety.

3) 3-b. and (c) of the facts constituting the crime in the judgment of the court below

Article 40 subparag. 2 and Article 29 subparag. 3 of the former Child Welfare Act (wholly amended by Act No. 11002, Aug. 4, 2011); Article 3(c) of the former Child Welfare Act ( emotional abuse and neglect against the victim non-indicted 2) (wholly amended by Act No. 11572, Dec. 18, 2012); Article 71 subparag. 2 and Article 17 subparag. 6 of the former Child Welfare Act (wholly amended by Act No. 11572, Dec. 18, 2012); Article 71 subparag. 1 and subparag. 7 of the Child Welfare Act (wholly amended by Act No. 11572, Jan. 28, 2014); Article 7 subparag. 17 of the Child Welfare Act (wholly amended by Act No. 11572, Dec. 17, 201); Article 7 subparag. 17 of the Child Welfare Act; Article 7 subparag. 17 of the Child Welfare Act.

B. Judgment on the defendant's assertion of mistake of facts

Comprehensively taking account of the evidence duly admitted and examined by the court below, the defendant can sufficiently recognize the fact that he committed the same crime as that set forth in paragraphs (1) and (3) of the judgment of the court below. Thus, the defendant'

3. Conclusion

Although the defendant's assertion of mistake is without merit, the judgment of the court below is reversed in accordance with Article 364 (2) of the Criminal Procedure Act without examining the prosecutor's argument of unfair sentencing, and the judgment below is again decided as follows.

The Defendant is the pro-friendly money of the victim Nonindicted 1 (Mus, 13) and the victim Nonindicted 2 (Mus, 12).

1. Crimes against the victim Nonindicted 1 and the victim Nonindicted 2

The Defendant sent, without any justifiable reason, to a school for 14 days during the period from June 1, 2012 to June 29, 2012, 15 days during the period from July 20 to August 31, 20, 209 days during the period from August 20, 200, 20 days during the period from August 20 to September 28, 200, 20 days during the period from September 20 to September 28, 10, 10 days in total for 68 days during the period from October 1 to October 17, 10, 200 to the victim non-indicted 2 (the victims of 10 years of age during the period from June 1 to 28, 201); 20 days during the period from June 28, 201 to the victims of 4 years of age in the same elementary school without justifiable reasons; 3 days during the period from June 1 to 28, 2017.

2. Crimes against the victim non-indicted 2

가. 피고인은 2010.경에서 2011.경 사이 여름경 위 1항 기재 피고인의 주거지에서 피해자 공소외 2(당시 8~9세)가 피고인이 묻는 말에 제대로 대답을 하지 않는다는 이유로 피해자와 같이 있던 피고인의 남편에게 “쟤 버리고 와라”라고 말을 하고, 그 말을 들은 남편이 피해자를 데리고 안성천까지 가게 하여 피해자의 정신건강 및 발달에 해를 끼치는 정서적 학대행위를 하였다.

B. In the Defendant’s residence indicated in paragraph (1) above, the Defendant shouldered the victim Nonindicted 2 (the 10 years of age at that time) who was locked and was suspected that the Defendant was scam in the Defendant’s book, and committed emotional abuse that may harm the victim’s body by threatening the victim’s hair, shoulder, bucks, etc. on a hand, leading the victim’s head head to the bee and knick, leading the victim’s head to the bee, and leading the victim’s head to the bee and knish by hand, and threatening the victim to scam off as if he would scam out of the bee and damage the victim’s body, and emotional abuse that may injure the mental health and development.

C. On February 2012, the Defendant committed emotional abuse that may harm the mental health and development of the victim by stating that there was a large amount of hospital expenses due to the victim Nonindicted Party 2 (the age of 10 at that time)’s chest in the Defendant’s residence as stated in the foregoing paragraph (1), and the victim said that “the victim is dead, finite, and so on.,” and committed an act of neglecting the victim’s treatment because it is not necessary for the hospital, even though the victim complained of pains that is not easily hidden.

1. Each legal statement of Nonindicted 3, Nonindicted 4, Nonindicted 5, and Nonindicted 6

1. Each police protocol on Nonindicted 4, Nonindicted 3, Nonindicted 1, and Nonindicted 2

1. A recording CD or record;

1. Photographs;

1. Summary of the children's school;

1. Data related to requests for infant delivery;

1. Investigation report, copy of attendance book, copy of life register, health register, notification of the contents of urging to attend school, request for reading attendance, and notification of the result thereof;

1. Family relation certificate, etc.;

1. Article applicable to criminal facts;

Article 40 Subparagraph 2 of the former Child Welfare Act (wholly amended by Act No. 1102, Aug. 4, 201); Article 29 Subparagraph 4 of the former Child Welfare Act (including neglect to send to schools before August 5, 2012; each victim); Article 71(1)2 of the Child Welfare Act; Article 17 Subparagraph 6 of the former Child Welfare Act (including neglect to send to schools after August 5, 201; each victim’s personal injury); Article 40 Subparagraph 2 of the former Child Welfare Act (wholly amended by Act No. 1102, Aug. 4, 201); Article 29 Subparagraph 3 (C) of the former Child Welfare Act (wholly amended by Act No. 1102, Oct. 1, 201); Article 27 Subparagraph 1 of the Child Welfare Act (wholly amended by Act No. 1271, Dec. 13, 2014); Article 17 Subparagraph 1 of the Child Welfare Act (wholly amended by Act No. 27 subparag. 161, Dec. 27, 17, 2017).

1. Selection of punishment;

Each Imprisonment Selection

1. Aggravation for concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

1. The scope of punishment by law: Imprisonment for not more than seven years and not more than six months;

2. Sentencing criteria:

【Scope of Recommendation】

In general standards for abandonment and abuse, Category 2 (Serious Abandonment and Abuse) basic area (6 to 16 months)

【Special Convicted Persons】

None

* Scope of recommendations according to the standards for handling multiple crimes: Six months to two years;

3. Determination of sentence;

Imprisonment for 10 months;

However, the Defendant abused the victims who are children for a long time, and the degree of such abuse is serious. The victims suffered continuous physical and mental pain due to the Defendant’s abuse, and have left the Defendant at present. Nevertheless, the Defendant did not recognize his/her mistake at all, and rather filed a civil petition or a criminal complaint against the employees of the child protection agency protecting victims.

Such circumstances and the defendant's age, occupation, character and conduct, the details of the crime and circumstances after the crime are committed shall be determined as per Disposition.

The summary of this part of the facts charged is the same as that of Article 2-A. 2-A. 2-A. 2-2). For the same reason as seen in Article 2-2-1(b) of the Criminal Procedure Act, the statute of limitations has expired, and thus, a decision of acquittal is rendered in accordance with Article 326 subparagraph 3 of the

It is so decided as per Disposition for the above reasons.

Judges Masung-young (Presiding Judge)