아동학대 사망 사건에서 살인죄 적용에 관한 소고 - ‘울산 계모 아동학대 살해 사건’을 중심으로 -

Abstract

The judicial authority has conventionally applied ‘accidental mortality’ to the death cases from child abuse, but recently Busan High Court convicted a stepmother in Ulsan Metropolitan City, Korea, of ‘homicide’ about a murder case from child abuse. This ruling is evaluated to set up a new standard and signpost in our society about the offence of child abuse. Unlike murder cases between adults, considering that death cases from chid abuse happen secretly in the family, and considering its distinct characteristics such as physical differences between victims, recidivism of abuse, hierarchical power relation, when recognizing this fact, the court should impose a strict judgement of credibility according to other objective evidences of the defendant’s deposition and general behavior law; and also about whether the willful negligence of murder should be recognized or not, the court has to see there is recognition that when continuous violence was used to a child who became vulnerable to crime due to continuous child abuse, the victim can be dead, so the court has to positively consider to apply homicide, considering that fists and feet of adults who have superior physical conditions to children are the same as the deadly weapon to the victims. Major advanced nations, including Britain, Germany and USA, also recognize death cases from child abuse without the use of deadly weapons as homicide and sentence to a severe punishment, including the maximum penalty allowable by law, without exception. In addition, given that a national bond of sympathy to punish severely child abuse developed, following series of death cases from child abuse, and “Special Act for Punishment of Child Abuse” was enacted, the sentence for it has to be drastically increased.