In a case where the Defendant, as a person obligated to report child abuse, was indicted on charges of violating the Act on Special Cases concerning the Punishment, etc. of Child Abuse by making a telephone conversations or watching television to the Party A’s protection by making physical abuse and emotional abuse to the Party A’s care, on the ground that Party A continued to do not sleep but continue to do so, the case holding that the Defendant was acquitted on charges of violating the Act on Special Cases Concerning the Punishment, etc. of Child Abuse, on the ground that: (a) the Defendant, as a person obligated to report child abuse, took a large amount of voice, such as “I saw, Gara, sound, grow, etc.; and (b) reported that Party A has a large amount of sound; and (c) without taking measures to ensure that Party A had a telephone conversation or watching television;

As a person obligated to report child abuse, the Defendant, who is a child care provider, was prosecuted for violating the Act on Special Cases Concerning the Punishment, etc. of Child Abuse, on the ground that the Defendant, at the home of the child victim Gap (the birth 10 months), made physical abuse and emotional abuse to the Party A’s protection by making a large voice, such as “I amb and amb and amb,” and “I amb and grow,” and without taking measures to ensure that I ambling with a large voice, he/she made a telephone conversation or viewed television, without taking measures to ensure that I ambling it, and thereby committed physical abuse and emotional abuse to the Party A’s protection.

The case holding that as evidence consistent with the facts charged, Gap's voice CD and its transcript (A, Defendant, and Eul) recorded the voice CD and its transcript, and the contents of the above voice CD and recording are comprised of ① the statement of the defendant against Gap, ② the part of telephone conversations between the defendant and Eul, ③ the part of telephone conversations with his own children, ④ the part of the defendant's voice and sound, ⑤ the part of the defendant's voice and sound, ⑤ the contents of which are trusted with others, ② the part cannot be seen as "the conversation between others" under the Protection of Communications Secrets Act, and ② the part is admissible, since it falls under "the conversation between others" under the same Act, ③ there is no admissibility of evidence in accordance with Article 14 of the same Act, and each police statement about Eul et al. are not admissible as evidence based on the evidence without admissibility, ⑤ the part of the facts charged which the defendant made a confession with the above physical abuse, but it is not sufficient to acknowledge it as evidence and evidence that the defendant made a confession from the investigation agency other than the above part of the facts charged.

Article 7 and Article 10(2)23 of the Act on Special Cases concerning the Punishment, etc. of Child Abuse; Article 17 subparag. 3 and 5 of the Child Welfare Act; Article 71(1)2 of the former Child Welfare Act (Amended by Act No. 14925, Oct. 24, 2017); Articles 1, 3(1), 4, and 14 of the Protection of Communications Secrets Act; Articles 308-2 and 325 of the Criminal Procedure Act

Defendant

Yellow Materials et al. and one other

Attorney Yoon Yong-jin

The defendant shall be innocent.

The summary of the judgment against the defendant shall be published.

1. Facts charged;

The Defendant is a child care provider belonging to Daegu ○○△△△△△△△△△△△, a social welfare foundation that is entrusted and operated by the family welfare division of Daegu △△△△△ ( Address 1 omitted).

피고인은 2017. 9. 13. 10:00경부터 같은 날 17:30경까지 대구 북구 (주소 2 생략)에 있는 피해아동 공소외 1(생후 10개월)의 집에서 피해아동이 잠을 자지 않고 계속 운다는 이유로 손으로 피해아동의 엉덩이 부위를 수회 때리고, 피해아동에게 “미쳤네, 미쳤어, 돌았나, 제정신이 아니제, 미친놈 아니가 진짜, 쯧, 또라이 아니가, 또라이, 쯧, 울고 지랄이고.”라는 등 큰 소리로 욕설을 하고, 피해아동이 큰 소리로 울고 있는 것을 보고도 피해아동의 울음을 그치도록 조치를 하지 않은 채 피고인의 아들과 통화를 하거나 텔레비전을 시청하였다.

Accordingly, the defendant, as a child care provider, committed physical abuse that may injure the child's body or injure the health and development of the body, and committed emotional abuse that may injure mental health and development.

2. Determination

A. The purpose of the Protection of Communications Secrets Act is to protect the confidentiality of communications and further enhance the freedom of communications (Article 1). Accordingly, the content of a conversation acquired by recording or listening to conversations between others that are not open to the public without following the aforementioned Act, the Criminal Procedure Act, or the Military Court Act (main sentence of Article 3(1)), and by listening to electronic or mechanical means, cannot be used as evidence in a trial or disciplinary procedure (Article 14(2) and (1) and Article 4).

In light of the language, content, structure, and legislative intent, etc. of the aforementioned provisions under the Protection of Communications Secrets Act, “alternativeization” refers, in principle, to communications between the parties who are protected under the Protection of Communications Secrets Act, with the appearance of the parties at the site. Therefore, the sound generated from an object, other than a human being’s fostering, does not constitute “alternativeization” among others. Moreover, even if a person’s voice is a human voice, it cannot be deemed that a simple non-defluence or awareness, etc., rather than delivering another person’s intent, constitutes “alternativeization” between others, unless there are special circumstances.

Meanwhile, guaranteeing the dignity and value of the people as human beings falls under the basic duties of State agencies and ought to be realized in criminal proceedings. Even if such sound does not fall under the “largeization” among others as prescribed by the Protection of Communications Secrets Act, whether to use such evidence in criminal proceedings ought to be determined by weighing and balancing effective criminal prosecution and the public interest, such as discovery of truth in criminal proceedings, and the protection interests of individuals, such as personal interests, in individual cases. If recording or listening to a voice of a person not belonging to conversation deviates from the permissible limits under social norms by seriously infringing on an individual’s privacy, freedom, or personality rights, the mere fact that it is necessary for criminal prosecution should not be readily concluded that the public interest, such as discovery of truth, was superior to the individual’s personal interests, etc., solely on the basis of the circumstance that it is necessary for criminal prosecution, thereby readily concluding that such voice was used as evidence in criminal proceedings (see Supreme Court Decision 2016Do19843, Mar. 15, 2017).

B. As evidence consistent with the facts charged in the instant case, there are a voice CD and its transcript (the recording on September 13, 200) (the recording on September 13, 200), and each police statement and each police statement on Nonindicted 3 and Nonindicted 2 on this basis and reply to the conclusion of the case.

The contents of the above voice CD and the recording consisting of ① the part where the defendant makes a statement to Nonindicted Party 1, ② the part where the defendant made a telephone conversation with the defendant and Nonindicted Party 2, ③ the part where the defendant made a telephone conversation with the defendant's children, ④ the part where the defendant made a voice with the victim Nonindicted Party 1, ⑤ the sound and other sounds that seem to be a table for what they are (the defendant). Among them, the above part ② cannot be deemed to have recorded a telephone conversation between Nonindicted Party 2 and the defendant, so it cannot be deemed to have been an application of Article 14 of the above Act, and thus, it is inadmissible as evidence (see Supreme Court Decision 201Do3106, Oct. 9, 201). Since the above part was irrelevant to the facts charged of this case, ④ the above part was made by the defendant with the victim's child for ten months after the birth at the time of this case and thus, it cannot be seen to have been admissible as a means of communication under the above law, not the above part of the voice.

On the other hand, the above part ① is the speech of the above victim by the defendant, and if considering the meaning of communication with the above victim who cannot express his opinion by speech, it is considered that the defendant's own opinion or idea is close to the confession that the defendant expresses his own opinion or idea rather than the "alternativeization". However, as above, although the victim does not make a speech, he expresses his opinion to the defendant by voice or sound, etc., and the defendant makes a speech to the victim in the sense that he follows or follows such behavior. Meanwhile, in light of the fact that the legislative purpose of protecting conversations between others not open to the public in the Protection of Communications Secrets Act is to protect communication secrets, to increase the freedom of communication, and to protect privacy, it is reasonable to regard the above part ① even if it is close to the confession of the defendant, it is not open to the public under the above Act.

Even if the above non-indicted 2 falls under a person's voice, it cannot be seen that the public interest, such as criminal prosecution and discovery of truth in criminal procedures, which can be secured by recording the Defendant's voice, is more likely to be superior to the value of the protection of the Defendant's privacy and freedom of privacy or personality rights. Thus, the above voice of the Defendant cannot be used as evidence. Ultimately, the above part ① cannot be admitted as evidence, and the above part ③ is obvious that it falls under a conversation between others that are not open to the public under the above law, and therefore, it is evident that this part is inadmissible.

In addition, each police statement and reply to the judgment of the case against the above non-indicted 3 and non-indicted 2 are the secondary evidence based on the evidence that is not admissible as above, and they are also considered inadmissible.

C. Under the above premise, there is room to view that there was no emotional abuse detrimental to the mental health and development of the child, on the ground that there was no evidence to reinforce the confessions, since the confessions constitute evidence unfavorable to the defendant, and the above confessions cannot be used as evidence of convictions, since the child was a child remaining 10 months after the birth at the time of the instant case, even if the defendant made such verbal abuse, it cannot be understood that there was no emotional abuse detrimental to the mental health and development of the child. However, in this case, even though the child was able to express her opinion by speech, it can be seen that there was no emotional abuse harmful to the child, on the ground that the victim did not have any meaning in this part, since it is sufficient and difficult to view that the victim was able to express her opinion by means of voice or sound, even if she could not express her opinion by speech, it was sufficient to view that the victim was able to give her emotional abuse or verbal abuse due to the height and intensity of the voice of the defendant, degree and attitude of the defendant, etc.

On the other hand, among the facts charged in the instant case, the part that the Defendant committed physical abuse by making the victimized child her her her k's k's k's k's k's k's k's k's k's k's k's k's k's k's k's k's k's k's k's k's k's k's k's k's k's k's k's k's k's k's k

3. Conclusion

Therefore, it is so decided as per Disposition by the assent of all participating Justices on the facts charged of this case, to pronounce innocence pursuant to the latter part of Article 325 of the Criminal Procedure Act, and to publicly announce the summary of the judgment of the defendant pursuant to Article 58 (2)

Judges Oh Byung-hee