2017Do12742 Child Welfare Violation

Defendant

Prosecutor

Law Firm Jeju Law Firm, Attorneys Sung Jong-hun et al., Counsel for the defendant-appellant

Jeju District Court Decision 2017No118 Decided July 20, 2017

January 16, 2020

The appeal is dismissed.

The grounds of appeal are examined.

1. As to the ground of appeal No. 1 (as to the part concerning the primary facts charged)

A. The judgment of the court below

1) The summary of this part of the facts charged is that the Defendant was unable to set the floor without properly arranging the play implements for five-years who suffered from developmental disability as a teacher in exclusive charge of child-care centers.

On the ground of the above, the court below found that there are various considerations such as the specific situation, the characteristics and age of the child, and the degree of development in determining the criteria for the children's affected land, and that the affected land for the children with developmental disabilities is not smooth, while there are problems that are dependent on the climatic education even though there are disabilities, it is more likely that the development would be added if the child depends on the climatic education because the climatic education would go more, after considering the facts as stated in its reasoning, it is probable to view that the defendant selected a method of guidance that would be shorter than that of the case at the time when the climatic act was committed on the day when the climatic act was committed, and that this was derived from the intention to promote the normal development of the children, and that the defendant's act was not likely to harm the child's health or welfare or to harm the physical development of the child, and that the judgment of the court of first instance was not affirmed as it is.

B. The meaning of and criteria for physical abuse and judgment

1) Article 17 Subparag. 3 of the former Child Welfare Act (amended by Act No. 12361, Jan. 28, 2014) stipulated that “the act of physical abuse subject to punishment” is “the act of abuse that damages a child’s body.”

Under the former Child Welfare Act, the court held that "an act of abuse that causes bodily harm to a child's body" means an act of causing a negative change to a person's body to the extent equivalent thereto even if it does not reach the level of "an injury that causes physical harm or physiological function" by exercising a tangible force on the child's body (see Supreme Court Decision 2015Do6781, May 12, 2016).

Article 17 subparagraph 3 of the amended Child Welfare Act (amended by Act No. 12361, Jan. 28, 2014) provides that "physical abuse that may harm a child's body or injure a physical health and development of a child" was added to the elements of "physical abuse that may harm a child's physical health and development."

In determining whether a person constitutes a physical abuse under the revised Child Welfare Act

In light of the purpose of the Child Reinstatement Act (Article 1) to ensure that Dong is born healthy and happy and safe, it shall be determined comprehensively by taking into account the following circumstances: place and time of the act, motive and background leading up to the act, degree and attitude of the act, response to children, etc.: the age and health conditions of the child; the offender’s ordinary inclination or repetition of similar act; and the period until the act is committed.

3) In the instant case:

Based on the evidence duly admitted, the lower court recognized the following facts. (A) The Defendant was in full charge of guiding three disabled children including the child who is a special teacher of the child care center of this case, which is a disabled child, under the Act on Welfare Support for Disabled Children, as a child care center for disabled children. The Defendant has tried to repeatedly instruct or engage in part of the child care center in order to correct the behavior of the disabled child through an error on the half a month, and have tried to provide various educational guidance in the manner that the victimized child would be injured. (B) At the time of the instant case, there is a problem such as refusing to correct the behavior of the victimized child, and on the day of the instant case, it is more likely that the Defendant’s series of acts including the above acts on the day of the instant case, including a series of acts before and after the act of the victimized child, were consistent with the guidance of the victimized child, and there is no positive or active action during the process of ratification, such as doing so.

C) After the instant case, the victimized child was in line with the guidance of the Defendant, and the Defendant was in line with the victim’s arms and rhythms during the class hours, thereby leading the victimized child normally.

The lower court determined that the Defendant’s choice of guidance methods that it considers most appropriate within reasonable scope and denied physical abuse by deeming that it can be deemed as part of continuous decoration. In so determining, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules.

2. As to the ground of appeal No. 2 (as to the part concerning the conjunctive facts charged), the lower court acquitted the Defendant of this part of the facts charged, on the ground that it is difficult to view that there is a proximate causal relation between the Defendant’s act and the victim’s injury, and in light of the circumstances in which the victim was injured and the series of acts by the Defendant and the victim, it is difficult to recognize the Defendant’s intent

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err by misapprehending the rules of evidence or omitting judgment.

3. Conclusion

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

Justices Jo Hee-de

Justices Kim Jae-in

Justices Min You-sook of the District Court

Justices Lee Jae-hwan