CONTENTS
- 1. A Child Abuse Report, What Were the Detailed Circumstances?
- - A Child Abuse Report, What Is the Legal Information Related to Evidence?
- 2. A Child Abuse Report, What Was the First-Instance Court's Determination?
- - A Child Abuse Report, What Was the Appellate Court's Determination?
- 3. A Child Abuse Report, What Was Daeryun's Strategy?
1. A Child Abuse Report, What Were the Detailed Circumstances?
In the lawsuit related to the child abuse report, the persons indicted on charges of violating the Child Welfare Act were A and B, who worked as postpartum caregivers.
A, an employee of a maternal and newborn health care service company, was brought to trial on the charge of abusing a 10-day-old newborn at the mother's home by placing the newborn's head on her left thigh and, while sitting cross-legged, violently shaking her leg.
B was brought to trial, together with A, on the charge of abusing a 60-day-old baby at the home of another mother by shaking the baby. According to the investigation, A pushed and pulled the stroller carrying the baby quickly, and B sat on a gym ball and bounced up and down while holding the newborn without securing the newborn's neck.
All of these acts came to light through the home CCTV installed at the mothers' homes.
The issue at the first-instance trial was whether the CCTV footage was admissible. A argued that she was unaware that the CCTV was recording, and the mother's side argued that the CCTV had been installed with implied consent but stated that the notice items required by law* had not been provided.
*As provided in Article 15(2) of the Personal Information Protection Act
A Child Abuse Report, What Is the Legal Information Related to Evidence?
In the 🔗collection of evidence in a criminal case through a child abuse report, can home CCTV be admitted as lawful evidence?
To answer this, the Personal Information Protection Act must be examined.
▣ Personal Information Protection Act, Article 15 (Collection and Use of Personal Information) (1) A personal information controller may collect personal information in any of the following cases and may use it within the scope of the purpose of such collection. 1. Where the consent of the data subject has been obtained 2. Where there are special provisions in statute or where it is unavoidable in order to comply with a statutory obligation 3. Where it is unavoidable for a public institution to perform its affairs under its jurisdiction as prescribed by statutes or regulations 4. Where it is necessary to perform a contract concluded with the data subject or to take measures requested by the data subject in the course of concluding a contract 5. Where it is deemed clearly necessary for the urgent interests of life, body, or property of the data subject or a third party 6. Where it is necessary to achieve the legitimate interests of the personal information controller and such interests clearly take precedence over the rights of the data subject. In such cases, this applies only where the controller's legitimate interests are substantially related and do not exceed a reasonable scope. 7. Where it is urgently necessary for public health and other public safety and welfare
(2) When a personal information controller obtains consent under paragraph (1) 1, the controller shall inform the data subject of the following matters.
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Because a private home is not a commercial space, people may readily assume that CCTV can be installed without the consent of a domestic worker or babysitter.
However, under the Personal Information Protection Act, even in a private space, the person being recorded must be informed of the purpose of the recording, the items, the period of retention and use, and the right to refuse the recording.
2. A Child Abuse Report, What Was the First-Instance Court's Determination?
In the case related to the child abuse report, the first-instance court, which examined whether CCTV footage recorded without consent could be admitted as lawful evidence, determined that the admissibility of the CCTV could not be recognized.
The court stated that "the installation and recording of the CCTV was carried out without the lawful consent of the defendants, who are the data subjects, and this constitutes evidence collected unlawfully that does not satisfy the requirements of Article 15(1) and (2) of the Personal Information Protection Act," and acquitted A and B.
The court also held that "even if the scenes captured in the CCTV were regarded as evidence, the conduct of A and B cannot be regarded as physical abuse subject to criminal punishment beyond undesirable caregiving."
A Child Abuse Report, What Was the Appellate Court's Determination?
In the lawsuit related to the child abuse report, the appellate court reversed the first-instance decision, finding that, even though the evidence had been collected unlawfully, this was a case in which the evidence could be admitted.
The appellate court grounded its determination on the points that it is practically impossible for parents to continuously monitor the entire course of caregiving and that, apart from recording, it is difficult to find an appropriate means to protect the legal interests of the child victim.
It also explained that "child abuse offenses are committed covertly, and given that the infant victim has no ability to defend themselves or to tell their parents of the harm, the evidence may be used even if some privacy is infringed."
It then determined that "although the evidence was not lawfully collected, when the public interest in discovering the truth is weighed against protected interests such as an individual's personal interests, the evidence can be admitted in this case."
Although the first-instance and appellate courts differed on the admissibility of the evidence, they reached the same conclusion in finding A and B not guilty of the child abuse charges.
The appellate court rendered the same not-guilty determination as the first instance, stating that "although the lower court's denial of admissibility was not appropriate, its conclusion finding the defendants not guilty is justified."
3. A Child Abuse Report, What Was Daeryun's Strategy?
We have analyzed a District Court judgment in which CCTV recorded without the other party's consent was recognized as lawful evidence in a criminal trial following a child abuse report.
As in the case above, many parents install home CCTV out of anxiety that their children may be abused. However, CCTV footage recorded without the other party's consent is, under the Personal Information Protection Act, often regarded as evidence collected unlawfully and, in many cases, is not admitted as evidence at trial.
Beyond this, disputes over whether evidence will be admitted continue to arise in various civil and criminal lawsuits.
The 🔗Evidence Examination Group of Daeryun Law Firm LLP collects and analyzes evidence on its own through its evidence collection team, and actively assists clients in securing lawful evidence that carries substantive effect.
If you wish to avoid a disadvantage arising from the burden of proof in litigation, you are welcome to request a legal consultation with Daeryun Law Firm.
