2005Do3832 The Accidental Homicide in the Conduct of Business

by the Supreme Court of Korea

Justices Kim Nun-hwan (Chief Justice), Kim Yong-dam, Park Si-whan (Justice in Charge), Park Ill-Hoan

Main Issues

1. The point when the unborn child becomes human
2. In the case of Caesarean Section, whether the period when medically Caesarean section was possible but normatively operation was needed could be interpreted as deliberation period (negative)
3. Whether the act of putting unborn child to death could be interpreted as injuring pregnant woman (negative)

Summary of Decision

1. The start point of human is the time when the deliberation has started (so called labor pain theory or deliberation starting theory) with periodic labor pains under the interpretation of criminal act that protects life of a man and physical security.
2. The period when medically Caesarean section was possible but normatively operation was needed could be interpreted differently by persons and situations, the period of starting the delivery which is the period of human could be unclear, therefore cannot be accepted.
3. Current criminal act has separate category for unborn child, irrespective of injury or accidental injury of human, such as illegal abortion, illegal abortion without consent, accidental injury or death from illegal abortion punishing self abortion of the pregnant woman, abortion without consent of the third party, acts ending in injury or death to the pregnant woman from illegal abortion. The act has no separate clause for negligent abortion and attempted abortion. Therefore, criminal law does not regard unborn child as part of body of pregnant woman, and abortion behavior can not be regarded as comprising a charge of injuring pregnant woman regardless of the fact that abortion behavior encroach the function of baby nurturing and giving birth to a child.

Reference Provisions

1. Article 268 of the criminal Act
2. Article 268 of the criminal Act
3. Article, 268, 257 of the criminal Act

Article 268 of the criminal act (Death and Injury by Occupational by Gross Negligence)

A person, who causes the death or injury of another by occupational or gross negligence, shall be punished by imprisonment for not more than five years or by a fine not exceeding twenty million won. <Amended by Act No. 5057, Dec. 29, 1995>

Article 257 of the criminal Act (Inflicting Bodily Injury on Other or on Lineal Ascendant)

(1) A person who inflicts a bodily injury upon another shall be punished by imprisonment for not more than seven years or suspension of qualifications for not more than ten years or by a fine not exceeding ten million won. <Amended by Act No. 5057, Dec. 29, 1995>

(2) When the crime as referred in paragraph (1) is committed on a lineal ascendant of the offender or of his spouse, one shall be punished by imprisonment for not more than ten years or a fine not exceeding fifteen million won. <Amended by Act No. 5057, Dec. 29, 1995>

(3) Attempts to commit the crimes of the preceding two paragraphs shall be punished.

Reference Cases

Supreme Court Decision 81Do2621 Delivered on October 12, 1982(Gong1982, 1116), Supreme Court Decision 98Do949 Delivered on October 9, 1998

[Defendant, Appellee]Defendant

[Plaintiff, Appellant]Public Prosecutor

[Defense Counsel]Attorney Yoon Hong-Geun of Law firm, Yoolchon

[Court of Third Instance]Supreme Court Decision 2003Do6570 delivered on March 26, 2004

[Court of Second Instance]Seoul Central district Court Judgment 2004No1677 delivered on May 12, 2005

Disposition

The appeal shall be dismissed

Reasoning

1. Concerning the accidental homicide in the conduct of business

The Supreme Court held the view that the start point of human is the time when the deliberation has started (so called labor pain theory or deliberation starting theory) with periodic labor pains under the interpretation of criminal act that protects life of a man and physical security. (Refer to Supreme Court Decision delivered Oct. 12 1982, 81Do2621 )

If we review the facts, the court below rightly viewed that the defendant was found not guilty for the facts charged, and there was no periodic labor pains which could be interpreted as initiation of labor, therefore, the unborn child can not be the "human" which is the object of accidental homicide in the conduct of business. There was no misjudgment in matters of law in the court below on the grounds for appeal regarding the alleged violation of the rules of evidence and others.

However, the prosecutor argues that in Caesarean section, we can make judgment afterwards based on the change of condition of the pregnant woman, treatment procedures of the medical staff, the period when medically Caesarean section was possible but normatively operation was needed could be interpreted as deliberation period, considering that Hae-Sook Lee who came to maternity hospital for deliberation around 00:30 August 11, 2001, was older pregnant woman aged 37 with glucosuria from pregnancy and experience with Caesarean Section twice. The prosecutor also argues that the unborn child grew up to 5.2Kg exceeding 14 days after the delivery date, medically natural childbirth was improper, making Caesarean section the only choice of deliberation, hence making the period when Hae-sook Lee came to hospital as the period of delivery. However, the period when medically Caesarean section was possible but normatively operation was needed could be interpreted differently by persons and situations, the period of starting the delivery which is the period of human could be unclear, therefore cannot be accepted. The grounds for appeal for this point cannot be accepted

2. The point concerning the accidental injury

Current criminal act has separate category for unborn child, irrespective of injury or accidental injury of human, such as illegal abortion, illegal abortion without consent, accidental injury or death from illegal abortion punishing self abortion of the pregnant woman, unconsented abortion from the third party, acts ending in injury or death to the pregnant woman from illegal abortion. The act has no separate clause for negligent abortion and attempted abortion. Therefore, criminal law does not regard fetus as part of body of pregnant woman, and abortion behavior can not be regarded as comprising a charge of injuring pregnant woman regardless of the fact that abortion behavior encroach the function of baby nurturing and giving birth to a child. Therefore, the act of putting unborn child to death cannot be interpreted as injuring part of body of pregnant woman or violating the physiological function of nurturing or giving birth to a child due to the death of a child.

The court below was correct in judging not guilty for above facts charged for reasons reiterated in the judgment below. There is no error in matter of law concerning relationship between unborn child and body of mother or concept of injury and there is no violation of rule of evidence. We cannot accept the arguments of grounds for appeal by the prosecutor.

3. Conclusion

Therefore, This decision in delivered with the assent of all Justices who heard the appeal, as the appeal by the prosecutor shall be dismissed.

Source

• Supreme Court Decision 2005Do3832 Delivered on June 29, 2007, Supreme Court Library of Korea