A parent puts a recorder in his child's bag... Supreme Court: “Independent statements of damage are admitted as evidence”

(Seoul = Yonhap News) Reporter Bitna Kim = The Supreme Court ruled that even if a parent recorded a classroom conversation by putting a tape recorder in the child's bag, separately obtained statements can be accepted as evidence of child abuse.

According to the legal community on the 11th, the 2nd Division of the Supreme Court (Chief Justice Oh Gyeong-mi) recently confirmed the original judgment that sentenced Mr. A, who was indicted on charges of violating the Special Act on the Punishment of Child Abuse Crimes, to a fine of 5 million won.

Mr. A, an elementary school teacher in Busan, was put on trial on charges of emotionally abusing a 9-year-old student by repeatedly saying things like "I'm stressed because of you" and "I can't study like that" in front of other students.

The first trial found Mr. A guilty based on court statements from the victim and his parents and a survey of students in his class, and sentenced him to one year in prison and two years of probation. He was also ordered to perform 160 hours of community service and be restricted from working at child-related organizations for five years.

However, the file in which the victim's parents recorded classroom conversations by putting a tape recorder in their bag was not accepted as evidence.

The current Communications Secrets Protection Act prohibits recording of ‘undisclosed conversations between other people,’ and contents recorded in violation of this are not recognized as evidence.

Then, in the appeal trial, Mr. A said, "The original trial rejected the admissibility of the recording file, but used the affidavit and court statements made based on it as evidence of guilt," and argued that the evidence admitted by the original trial was secondary evidence based on evidence collected illegally and therefore had no admissibility as evidence.

It was also argued that Wonshim's sentence was too heavy.

Accordingly, the second trial did not accept Mr. A's claim, saying that the victim child gave consistent statements from the investigation stage to the court statement, and that there was no circumstances to believe that the first trial relied on the recording file to determine guilt.

The second trial ruled, "Even if the mother of the victim recorded the conversation in the classroom through an illegal method to confirm the fact of the damage, the evidence cannot be excluded from the testimony of the victim or the guardian based on such circumstances alone."

However, considering the fact that some of the charges cannot be considered emotional abuse, Mr. A's claim of unfair sentencing was accepted and the fine was reduced to 5 million won. He was also ordered to complete 40 hours of a child abuse treatment program.

The Supreme Court also dismissed the appeal, finding no problems with the original judgment.

The Supreme Court stated, “The original trial did not misunderstand the legal principles regarding the rules for excluding illegally collected evidence and the evidentiary capacity of secondary evidence.”