Secret Recording to Reveal Child Abuse... Supreme Court Rules "Evidence Not Admissible"

The Supreme Court has ruled that a recording file secretly recorded by a parent who placed a recorder in the bag of a child abused by a homeroom teacher, capturing the teacher's remarks inside the classroom, cannot be recognized as evidence.

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The Supreme Court's First Division (Presiding Justice Oh Kyung-mi) overturned the original ruling that sentenced Choi, who was charged with violating the Special Act on the Punishment of Child Abuse Crimes, to a fine of 5 million won, and sent the case back to the appellate court on the 11th.

Choi, a teacher at an elementary school in Seoul, was put on trial for emotionally abusing a third-grade student, A, who transferred to his homeroom class in March 2018, by making remarks such as "You look like a kid who hasn't been to school," "You're hopeless," and "You think doing stupid things is something to be proud of."

Choi's verbal abuse continued for about two months, escalating in severity with insults like "I want to open your head to see how your brain is made" and "He's always out of his mind." It was also revealed that he encouraged bullying by telling other students, "If you play with him, your life will be ruined."

When rumors spread that the child was being mistreated, Choi scolded the students, saying, "Who said the teacher speaks harshly? Spreading such false rumors constitutes false accusation."

Choi's behavior was uncovered when a parent, having heard from A that the teacher spoke harshly at school, secretly placed a recorder in the child's bag before sending him to school. The recorder captured Choi's verbal abuse.

The first trial court stated, "The teacher, who should protect young elementary students, abandoned his duty and repeatedly committed emotional abuse against the victim in a short period. The nature of the crime and its illegality are severe, and the victim and the victim's parents have not forgiven him," sentencing Choi to six months in prison with a two-year probation.

Choi appealed, arguing that the secret recording by A's parents was a conversation between others that was not publicly disclosed, thus constituting illegally obtained evidence without evidentiary value. Article 14 of the Protection of Communications Secrets Act stipulates that "No one shall record or listen to conversations between others that are not publicly disclosed using electronic devices or mechanical means." Content obtained in violation of this cannot be used as evidence in court.

The appellate court recognized the evidentiary value of the recording file in which A's parents secretly placed a recorder in the child's bag to capture the teacher's remarks inside the classroom.

The appellate court judged, "The victim is a third-grade elementary student who lacked the ability to defend his legal interests against the homeroom teacher's actions. Upon hearing A's statements, the parents suspected abuse and recorded it to prevent further abuse, showing a close personal relationship between the recorder and the conversation participant (the victim) to the extent that they can be identified as the same party." However, considering that Choi was a first-time offender with no prior criminal record and showed remorse, the court reduced the sentence to a fine.

However, the Supreme Court's judgment differed. The Supreme Court held that the defendant's remarks during class secretly recorded by the victim's parents constitute a "non-public conversation" and thus lack evidentiary value.

The court stated, "A teacher's remarks during class are typically directed only to students inside the classroom and are only disclosed to those students, not to the general public or an unspecified majority," and judged that "the defendant's remarks during class secretly recorded by the victim's parents constitute a 'conversation between others.'"

Furthermore, "The victim's parents are not parties originally involved in the conversation during the defendant's class," and "Since it is a recording of a non-public conversation between others, its evidentiary value is denied under the Protection of Communications Secrets Act," the court ruled.

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