There are cases in which child abusers are not given employment restrictions or orders to complete treatment programs because they are not the 'guardians' of the victims.
This is because the 'Child Abuse Punishment Act' (the Act on Special Cases Concerning the Punishment of Child Abuse Crimes), which was enforced in 2014 to strengthen punishment for child abuse crimes, defines child abuse crimes too narrowly as 'child abuse by guardians'.
In November of last year, Judge Lee Jin-young, the 9th independent criminal of the Seoul Northern District Court, pleaded guilty to the charge of violating the Child Welfare Act (child abuse) and sentenced him to 10 months in prison.
However, the prosecution's request to order A to restrict employment in child-related institutions and complete child abuse treatment programs was dismissed.
In February of this year, the Seoul Eastern District Court's 2nd Criminal Division Chief Judge Shin Yong-moo also pleaded guilty to the charge of violating the Child Welfare Act (child abuse) by Mr. B, but did not order employment restrictions or completion of the treatment program.
Both judges explained why in their judgments, saying, "The accused cannot make an order because he is not the 'guardian' of the victim."
The Child Welfare Act stipulates that an order to restrict employment at child-related organizations is possible if a sentence is imposed for a crime related to child abuse.
Here, crimes related to child abuse include child abuse under the Child Abuse Punishment Act and murder or attempted murder against a child under the Criminal Act.
An order to complete a child abuse treatment program can be made 'if the child abuser is convicted'.
A child abuser refers to a person who commits a child abuse crime under the Child Abuse Punishment Act and an accomplice.
In the end, unless you commit murder or attempted murder, you are subject to employment restrictions and an order to complete a treatment program only if you commit a crime of child abuse under the Child Abuse Punishment Act.
The problem is that the 'crime of child abuse' under Article 2, No. 4 of the Child Abuse Punishment Act is defined as 'child abuse by a guardian'.
Accordingly, in child abuse cases other than murder, the court cannot order the completion of treatment programs or restrictions on employment unless the accused is the victim's guardian.
Even if a third party commits child abuse like Mr. A or Mr. B, he will not be subject to employment restrictions.
In the legal circle, it is pointed out that the Child Abuse Punishment Act, which was created to strengthen the punishment of child abuse, stipulates only abuse by guardians as child abuse crimes, creating a 'blind spot'.
“When the National Assembly first enacted the Child Abuse Punishment Act, it seems to be the result of considering how to strengthen the punishment for child abuse by guardians,” said a chief judge working at a court in the metropolitan area.
The Child Abuse Punishment Act was enacted by the National Assembly at the end of 2013 and came into force in September of the following year after a stepmother in Ulsan repeatedly assaulted and killed her eight-year-old stepdaughter between 2011 and 2013, which drew public outrage.
This law contains provisions to strengthen punishment, including up to life imprisonment, if the offender causes a child to die.