아동학대에서 보호자의 포섭범위 및 상해와의 관계 - 대법원 2021. 9. 16. 선고 2021도5000 판결을 중심으로 -

The parental authority A and B, the lover of A, are charged with joint principal offender of child abuse homicide under the Child Abuse Punishment Act on the victim child, the child of A. Although B did not live with A and the victim, he continued to instruct A about parenting and abuse, monitored the victim’s life through a camera, and also went to the school and hospital of the victim. The first and second instance courts regarded child abuse homicide as the untrue identity offender of injury mortality, and judged that B was not a guardian and punished B as injury mortality. However, the Supreme Court considered child abuse mortality as a true identity offender and judged that B should be punished as the child abuse mortality. The first and second instance courts determined that B was not a guardian because he did not live with the parental authority and the victim child and was not a spouse of A’s de facto marriage. However, cohabitation and de facto marriage are not related to the issue of determining the guardian for the child, and whether the guardian is in a practical protection and parenting relationship should be determined. In this case, B can be sufficiently recognized as a guardian because there are circumstances such as instructing the parenting method, such as abuse, etc., and A subordinate to it. The first and second trials’ judgment of child abuse mortality as a untrue identity offender against injury mortality means that child abuse and injury are the same, and the Supreme Court’s judgment of child abuse mortality as a true identity offender means that these are separate components. However, there is no specific explanation on the basis of the Supreme Court’s judgement. Therefore, I hope that Supreme Court will make a more detailed judgment on the reasons for distinguishing between the two crimes.