[1] Requirements for establishing abandonment

[2] In a case of de facto marriage, whether the existence of “legal protection obligation” necessary for the establishment of the crime of abandonment is recognized (affirmative)

[3] The case holding that the crime of death by abandonment is committed on the ground that there is no evidence to prove that a de facto marital relationship cannot be acknowledged solely for the reason of living together or establishing an internal relationship, and that there is a lack of evidence to prove that a woman was aware that he was in a state where aid is required by taking away a spon

[1] In order to establish the crime of abandonment, an actor must not only be deemed a person who has a legal or contractual obligation to protect a person in need of assistance due to labor, disease, or other circumstances, as prescribed by Article 271(1) of the Criminal Act, but also a person who has a legal or contractual obligation to protect a person in need of assistance, recognizing the existence of the cause of the responsibility to protect a person in need of assistance, and there is a sense that he/she neglects the duty to

[2] Of the legal duty of protection under Article 271(1) of the Criminal Code, the duty of support between husband and wife under Article 826(1) of the Civil Code includes the duty of support among husband and wife based on Article 826(1) of the Civil Code. Furthermore, even in the case of a de facto marital relationship, even though it is not a legally married couple, the existence of the above legal duty of protection should be affirmed in light of the purport of the above provisions of the Civil Code and the protection of the legal interest of the crime of abandonment. However, there is insufficient circumstance that the parties have a simple marital relationship or a sporadic marital relationship to receive protection equivalent to a de facto marital relationship. In addition, the parties

[3] The case denying the establishment of a crime of death resulting from abandonment on the ground of lack of evidence to prove that a de facto marital relationship cannot be recognized solely on the grounds of living together or establishing an internal relationship, and that there is insufficient evidence to prove that a woman was aware that he was in a state where aid is required by taking away a lophone in the amount of death

[1] Articles 271 and 275 of the Criminal Act / [2] Articles 271(1) and 826(1) of the Criminal Act / [3] Article 271 of the Criminal Act, Article 826(1) of the Civil Act

[1] Supreme Court Decision 86Do225 delivered on August 9, 198 (Gong1988, 1214) / [2] Supreme Court Decision 86Meu70 delivered on February 10, 1987 (Gong1987, 428) Supreme Court Decision 2000Do4942 Delivered on January 30, 2001 (Gong2001Sang, 586)

Defendant

Prosecutor

Attorney Jeong-mo

Seoul High Court Decision 2007No337 decided May 9, 2007

The appeal is dismissed.

We examine the grounds of appeal.

In order to establish the crime of abandonment resulting in the death of a person by committing a simple abandonment, it is necessary to first establish a simple abandonment crime. As such, according to Article 271(1) of the Criminal Act concerning a simple abandonment crime, an offender is “a person who is legally or contractually responsible to protect a person who needs assistance due to labor, disease, or any other circumstances,” and there is a sense that he/she is aware that there was a cause of the responsibility to protect a person in need of assistance and neglects his/her duty to provide assistance based thereon (see Supreme Court Decision 86Do225 delivered on August 9, 198).

In addition, among the legal protection obligations under the above provision, the duty of support between husband and wife based on Article 826(1) of the Civil Act includes the duty of support between husband and wife. Furthermore, even in the case where a de facto marital relationship is not a legally married couple, in light of the purport of the above provision of the Civil Act and the protected legal interest in the crime of abandonment, the existence of the above legal protection obligation should be affirmed. However, there is insufficient reason for the circumstance that the parties have a simple marital relationship or a sporadic marital relationship with the aim of receiving protection corresponding to a de facto marital relationship because they fall under such de facto marital relationship. In addition, there is a subjective intention of marriage between them, and objectively, there should be the substance of marital life that can recognize marital life in terms of the family order in light of social norms (see Supreme Court Decisions 200Do4942, Jan. 30, 201; 200Da52943, Apr.

The court below found the defendant not guilty of the above facts charged on the ground that the defendant and the deceased non-indicted in the family living together for four years is not guilty on the ground that the relation between the two persons is a de facto marital relationship or that the defendant cannot be recognized as a duty of protection corresponding to the mutual support duty between the two persons, and that there is insufficient conviction that there is no reasonable doubt as to the defendant's perception that the non-indicted was in a state where aid is required by taking the scamphone in the form of death, in light of the facts and the records recognized in accordance with the ruling, and therefore, the facts of the judgment below found the defendant guilty of the above facts charged on the ground that the charges of abandonment in this case constitute a case where there is no proof of crime. In light of the above legal principles and the records, the judgment of the court below is proper, and there is no violation of the legal principles as to the recognition of the state requiring aid

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

Justices Lee Hong-hoon (Presiding Justice)