[Jinju Law Office] Child Abuse Suspect Obtains Revocation of a Suspension of Indictment Before the Constitutional Court Through Counsel's Assistance

The client was an ordinary homemaker who was raising two sons.

Ordinary days continued, but conflict began as the eldest child entered a period of intense adolescence.

Whenever his demands were not met, the child became greatly angry, and eventually he even threw objects. The client was injured as a result, but the client endured and disciplined the child.

On the day the incident occurred, the two also had a dispute over a cell phone.

At the client's nagging that he should use the cell phone in moderation, the child again became angry, went alone into his room, and sent a text message to his school teacher suggesting abuse by his parents.

The police were even dispatched as a result, but the commotion was resolved upon the client's explanation that it was merely discipline.

However, in a subsequent interview at the school, the child continued to lie, claiming that he had suffered physical and emotional abuse from his mother. As a result, the client received a suspension of indictment on a child abuse charge.

The client, who still felt innocent, petitioned for constitutional complaint adjudication, claiming that the prosecution's suspension of indictment had infringed upon her individual right to equality and right to pursue happiness.

• ▶ Constitutional Complaint under Article 68(1) of the Constitutional Court Act

A person whose fundamental rights guaranteed by the Constitution have been infringed by the exercise or non-exercise of governmental power may, except in the case of a court judgment, file a constitutional complaint with the Constitutional Court. However, if other statutes provide a remedial procedure, the complaint may be filed only after all such procedures have been exhausted.

▶ Article 17 of the Child Welfare Act (Prohibited Acts)

No person shall commit any of the acts falling under any of the following subparagraphs.

3. An act of physical abuse that causes injury to a child's body or harms the child's physical health and development

5. An act of emotional abuse that harms a child's mental health and development

▶ Supreme Court Decision of May 10, 2012, 2011Do16413

“Where the only direct evidence supporting the facts charged is the victim's statement, and the remaining evidence consists merely of hearsay and other evidence based on the victim's statement, in order to find the facts charged guilty solely on the basis of the victim's statement, a degree of probative value high enough to leave almost no room for doubt as to the truthfulness and accuracy of the statement is required. In determining whether such probative value has been established, the court must comprehensively consider not only the rationality, consistency, and objective reasonableness of the victim's statement itself, but also personal factors such as the victim's character.”

▶ See Supreme Court Decision of January 16, 2020, 2017Do12742

“In determining whether an act constitutes physical abuse under the Child Welfare Act, the court must consider, in addition to the circumstances surrounding the act, such as the place and time at which the act occurred, the motive and background leading to the act, the degree and manner of the act, and the child's reaction, as well as the child's age and state of health, the actor's usual disposition, and whether similar acts were repeated and the period over which they occurred, and reach a comprehensive judgment.”

The client's child claimed before the investigative agency that the client had used abusive language, such as saying “I curse you.”

However, this was an exaggeration by the child of the client's words “do not be irritable,” and it was not true. No evidence other than the child's statement existed.

Even though the child and the client made contradictory statements in this way, the investigative agency did not closely examine the positions of both sides.

The Jinju Law Office pointed out these circumstances of insufficient investigation by the investigative agency and emphasized that the suspension of indictment should be revoked.

The client was also charged with inflicting physical abuse, such as scratching the back of the child's hand. However, this too was not true.

The only related evidence was the child's statement and a photograph of the wound. An examination of the photograph showed that the wound had been formed a very long time earlier, which differed significantly from the time when the child claimed to have been abused.

The child's statement was also inconsistent. The child's account of the dates and methods of the abuse changed anew at each examination.

Although the child's statement contained many such flaws, the investigative agency did not compare and analyze them.

The Jinju Law Office argued that there was no objective evidence capable of proving the client's physical abuse charge, and asserted that the client was not guilty.

Even assuming, for the sake of argument, that the client had in fact inflicted physical and emotional abuse on the child, there was a significant error in the prosecution's suspension of indictment.

According to Supreme Court precedent, in order for an act to be deemed “abuse,” the act must be carried out repeatedly over a certain period and must affect the normal development of the victimized child's physical or mental health.

However, even if the prosecution's claims were fully accepted, the client's act occurred only once, so it cannot be interpreted as abuse.

The Jinju Law Office argued that the investigative agency had infringed the client's right to equality and right to pursue happiness by failing to properly interpret what constitutes an act of abuse.

A suspension of indictment means that, even though the criminal charge is acknowledged, the prosecutor decides not to indict the suspect in consideration of factors such as the suspect's age and circumstances, as well as the motive and means of the offense.

Although the case is not referred to trial and no criminal record remains, a suspension of indictment is distinguished from a finding of no suspicion or an acquittal in that the charge itself is acknowledged.

For a suspect who acknowledges the criminal charge, a “suspension of indictment” may be a fortunate outcome.

However, for an innocent suspect, the same suspension of indictment inevitably carries a very different meaning. This is because, whatever the situation, the suspect has been found to bear “guilt.”

However, a party subject to the disposition who is not a complainant or accuser has no immediate means of filing an appeal even if the suspension of indictment was issued unjustly.

The only way to resolve such an injustice is a “constitutional complaint,” as in the case above.

It is reported that more than 500 cases seeking revocation of a suspension of indictment are filed with the Constitutional Court each year. Of these, approximately 20% are reportedly upheld on grounds of insufficient investigation or misapprehension of the law.

Given that this is not a particularly low rate of acceptance, if there is a clear reason why a suspension of indictment issued against you must be revoked, it may be worth seeking the assistance of specialized counsel and turning to the Constitutional Court.

At the Jinju Law Office, attorneys with extensive trial experience assist clients according to each situation.

If you have significant concerns regarding a suspension of indictment, please visit the Jinju Law Office.