Open Decision Ledger · Criminal law
Status-based child abuse causing death and joint principal liability
Supreme Court, Sept. 16, 2021, 2021Do5000 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 아동학대범죄의처벌등에관한특례법위반(아동학대치사)·아동복지법위반(상습아동학대)
Official text on the National Law Information Center
Question
Where a mother and her partner were jointly prosecuted for causing a child's death by sustained abuse under Article 4 and Article 2(4)(a) of the former Special Act on the Punishment of Child Abuse Crimes, Article 257(1) and Article 30 of the Criminal Act, is a co-offender without guardian status a joint principal offender who must be sentenced under the penalty in Article 4 of that Act rather than under Article 259(1) of the Criminal Act?
Holding
Yes. Article 4 and Article 2(4)(a) to (c) of the former Special Act punish a guardian who commits a child abuse crime and causes that child's death, by life imprisonment or at least five years, so they create an offence arising from a status relationship within the meaning of the main clause of Article 33 of the Criminal Act. A co-offender who has no such status is therefore a joint principal offender punishable under the main clause, and must be sentenced under the penalty in Article 4 of the Act, not under the penalty for injury causing death in Article 259(1).
Points at issue, verbatim
구 아동학대범죄의 처벌 등에 관한 특례법 제4조, 제2조 제4호 (가)목 내지 (다)목은 보호자가 같은 법 제2조 제4호 (가)목 내지 (다)목에서 정한 아동학대범죄를 범하여 그 아동을 사망에 이르게 한 경우를 처벌하는 규정으로 형법 제33조 본문의 ‘신분관계로 인하여 성립될 범죄’에 해당하므로
Unofficial English translation
Articles 4 and Article 2 (4) (a) through (c) of the former Special Act on the Punishment, etc. of Child Abuse Crimes are provisions that punish the case where a person having custody commits a child abuse crime prescribed in Article 2 (4) (a) through (c) of the same Act and thereby causes the child to die, and therefore correspond to a 'crime that may be established by reason of a status relationship' as used in the main text of Article 33 of the Criminal Act, and therefore
Disposition
Partly reversed and remanded Stated in the decision
원심판결 중 피고인 2에 대한 부분을 파기하고, 이 부분 사건을 대전고등법원에 환송한다. 피고인 1의 상고를 기각한다.
Unofficial English translation
The part of the judgment of the court below concerning Defendant 2 is reversed, and the case in this part is remanded to the Daejeon High Court. The final appeal of Defendant 1 is dismissed.
Form of the test
Elements stated Stated in the decision
이는 보호자가 구 아동학대처벌법 제2조 제4호 (가)목 내지 (다)목에서 정한 아동학대범죄를 범하여 그 아동을 사망에 이르게 한 경우를 처벌하는 규정으로 형법 제33조 본문의 ‘신분관계로 인하여 성립될 범죄’에 해당한다.
Unofficial English translation
This is a provision that punishes the case where a person having custody commits a child abuse crime prescribed in Article 2 (4) (a) through (c) of the former Child Abuse Punishment Act and thereby causes the child to die, and it corresponds to a 'crime that may be established by reason of a status relationship' as used in the main text of Article 33 of the Criminal Act.
Factors
- 피해아동 갑의 친모인 피고인 을이 자신과 연인관계인 피고인 병과 공모하여 갑을 지속적으로 학대함으로써 사망에 이르게 하였다는 공소사실에 대하여
- 구 아동학대범죄의 처벌 등에 관한 특례법 제4조, 제2조 제4호 (가)목 내지 (다)목은 보호자가 같은 법 제2조 제4호 (가)목 내지 (다)목에서 정한 아동학대범죄를 범하여 그 아동을 사망에 이르게 한 경우를 처벌하는 규정으로
- 형법 제33조 본문의 ‘신분관계로 인하여 성립될 범죄’에 해당하므로
- 피고인 병에 대해 형법 제33조 본문에 따라 구 아동학대범죄의 처벌 등에 관한 특례법 위반(아동학대치사)죄의 공동정범이 성립하고 같은 법 제4조에서 정한 형에 따라 과형이 이루어져야 한다는 이유로
Unofficial English translation
• on the public prosecution facts that Defendant B, the biological mother of child victim A, conspired with Defendant C, who was in a romantic relationship with her, to continuously abuse A, thereby causing A's death,
• Articles 4 and Article 2 (4) (a) through (c) of the former Special Act on the Punishment, etc. of Child Abuse Crimes are provisions that punish the case where a person having custody commits a child abuse crime prescribed in Article 2 (4) (a) through (c) of the same Act and thereby causes the child to die, and
• correspond to a 'crime that may be established by reason of a status relationship' as used in the main text of Article 33 of the Criminal Act, and therefore
• on the ground that Defendant C is liable as a joint principal offender for the crime of violation of the former Special Act on the Punishment, etc. of Child Abuse Crimes (child abuse causing death) under the main text of Article 33 of the Criminal Act, and the sentence must be determined in accordance with the penalty prescribed in Article 4 of the same Act,
Relation to precedent
Cannot be determined Not in the decision
Decisions referred to
해당 본문 참조
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
Where a co-offender takes part in an act that is not one of the child abuse crimes listed in Article 2(4)(a) to (c) of the former Act, is any joint principal offence under the main clause of Article 33 left?
The remand judgment of the Daejeon High Court in case 2020No371 will show how the penalty in Article 4 of the Special Act is applied to a co-offender without guardian status. Any change to current Article 4(2) of that Act or to Article 33 of the Criminal Act, or a later Supreme Court decision on this status offence, calls for a fresh reading.
Cross-family AI independent reading & axis check
7 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-25
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on 7 of the 8 axes; the readings differed on axis 8 (open question and revisit condition).
Axis 8 (Open question and revisit condition): Primary “Where a co-offender takes part in an act that is not one of the child abuse crimes listed in Article 2(4)(a) to (c) of the former Act, is any joint principal offence under the main clause of Article 33 left?” vs Independent “What sentence should defendant 2 receive on remand under the correct statutory penalty?”
The primary asks whether joint principal liability survives when the co-offender's act is not a listed abuse crime, while the independent asks what sentence defendant 2 should receive on remand.
구 아동학대범죄의 처벌 등에 관한 특례법 제4조, 제2조 제4호 (가)목 내지 (다)목은 보호자가 같은 법 제2조 제4호 (가)목 내지 (다)목에서 정한 아동학대범죄를 범하여 그 아동을 사망에 이르게 한 경우를 처벌하는 규정으로 형법 제33조 본문의 ‘신분관계로 인하여 성립될 범죄’에 해당하므로Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Daejeon High Court, in its judgments of 6 April 2021 (2020No371) and 20 April 2021 (2020No371-1), found Defendant 2 guilty of the indictment save for the part held not guilty for want of reason. It held that Defendant 2 was not a guardian under Article 3(3) of the Child Welfare Act, but that because he committed the offence in concert with Defendant 1, who had a status relationship, the offence of child abuse causing death under the Special Act was established; applying the proviso of Article 33 of the Criminal Act, it sentenced him under Article 259(1), injury causing death. It also left undisturbed the 15-year prison term imposed on Defendant 1 at first instance.
Supreme Court standard: The Supreme Court found no error in the finding that Defendant 2 was not a guardian, nor any error in the treatment of the indictment, joint principal liability or foreseeability. It held that Article 4 and Article 2(4)(a) to (c) of the former Special Act are a status-based offence, so the main clause of Article 33 applied, Defendant 2 was a joint principal offender and had to be sentenced under Article 4 of the Act; the court below had misread the law by applying the proviso and Article 259(1). Because the reversed part stood in a concurrence or single-offence relationship under the former clause of Article 37 with the remaining guilty and not-guilty parts, the whole of the judgment as to Defendant 2 was reversed and remanded, while Defendant 1's appeal was dismissed.
Distinguishing conditions
- A defendant who is himself or herself a guardian within the meaning of Article 3(3) of the Child Welfare Act, where the status element is met directly rather than through a co-offender.
- A case prosecuted on a different set of applicable provisions, since the Court framed its holding for a prosecution under Article 4, Article 2(4)(a) of the former Child Abuse Punishment Act and Articles 257(1) and 30 of the Criminal Act.
- A co-offender whose act is not one of the child abuse crimes listed in Article 2(4)(a) to (c) of the former Act, since the status offence reaches only those crimes.
Record verification notes
Establish first whether the defendant is a guardian under Article 3(3) of the Child Welfare Act, because that finding was left standing here and decides which limb of Article 33 is engaged. Then match each charged act against the child abuse crimes listed in Article 2(4)(a) to (c) of the former Act: Article 4 punishes a guardian who commits one of them and causes the child's death, and the main clause of Article 33 extends that penalty to a co-offender without the status. Finally note the scope of the reversal: the whole of Defendant 2's part went because the remaining guilty and not-guilty parts stood in concurrence under the former clause of Article 37.
From the official text
Points at issue
피해아동 갑의 친모인 피고인 을이 자신과 연인관계인 피고인 병과 공모하여 갑을 지속적으로 학대함으로써 사망에 이르게 하였다는 공소사실에 대하여 구 아동학대범죄의 처벌 등에 관한 특례법 제4조, 제2조 제4호 (가)목, 형법 제257조 제1항, 제30조를 적용법조로 공소가 제기된 사안에서, 구 아동학대범죄의 처벌 등에 관한 특례법 제4조, 제2조 제4호 (가)목 내지 (다)목은 보호자가 같은 법 제2조 제4호 (가)목 내지 (다)목에서 정한 아동학대범죄를 범하여 그 아동을 사망에 이르게 한 경우를 처벌하는 규정으로 형법 제33조 본문의 ‘신분관계로 인하여 성립될 범죄’에 해당하므로, 피고인 병에 대해 형법 제33조 본문에 따라 구 아동학대범죄의 처벌 등에 관한 특례법 위반(아동학대치사)죄의 공동정범이 성립하고 같은 법 제4조에서 정한 형에 따라 과형이 이루어져야 한다는 이유로, 이와 달리 피고인 병 대하여 형법 제33조 단서를 적용하여 형법 제259조 제1항의 상해치사죄에서 정한 형으로 처단한 원심판단에 법리오해의 위법이 있다고 한 사례
Unofficial English translation
In a case where public prosecution was instituted, with Article 4 and Article 2 (4) (a) of the former Special Act on the Punishment, etc. of Child Abuse Crimes and Article 257 (1) and Article 30 of the Criminal Act applied as the statutory provisions, on the public prosecution facts that Defendant B, the biological mother of child victim A, conspired with Defendant C, who was in a romantic relationship with her, to continuously abuse A, thereby causing A's death, Articles 4 and Article 2 (4) (a) through (c) of the former Special Act on the Punishment, etc. of Child Abuse Crimes are provisions that punish the case where a person having custody commits a child abuse crime prescribed in Article 2 (4) (a) through (c) of the same Act and thereby causes the child to die, and therefore correspond to a 'crime that may be established by reason of a status relationship' as used in the main text of Article 33 of the Criminal Act; accordingly, Defendant C is liable as a joint principal offender for the crime of violation of the former Special Act on the Punishment, etc. of Child Abuse Crimes (child abuse causing death) under the main text of Article 33 of the Criminal Act, and the sentence must be determined in accordance with the penalty prescribed in Article 4 of the same Act; and this case held that the judgment of the court below, which, contrarily, applied the proviso to Article 33 of the Criminal Act to Defendant C and dealt with Defendant C under the penalty prescribed for the crime of causing bodily injury resulting in death in Article 259 (1) of the Criminal Act, was erroneous as a misapprehension of legal principles
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
원심판결 중 피고인 2에 대한 부분을 파기하고, 이 부분 사건을 대전고등법원에 환송한다. 피고인 1의 상고를 기각한다.
Unofficial English translation
The part of the judgment of the court below concerning Defendant 2 is reversed, and the case in this part is remanded to the Daejeon High Court. The final appeal of Defendant 1 is dismissed.
Provisions referred to
구 아동학대범죄의 처벌 등에 관한 특례법(2021. 3. 16. 법률 제17932호로 개정되기 전의 것) 제2조 제2호, 제4호 (가)목, 제4조(현행 제4조 제2항 참조), 아동복지법 제3조 제3호, 형법 제30조, 제33조, 제257조 제1항, 제259조 제1항
Read 2026-10-25 · Cross-read 2026-10-25. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
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