A legal argument about the case where a person is killed by a dog

 

Abstract

Although the culture of raising dogs is rapidly expanding, the ‘rules’ for managing dogs in our society are fully established, and this paper’s goal is to diagnose the legal issues caused by dogs in recent Korean society.

If a dog asks a person, where is the responsibility? When an incident occurs, it is the responsibility of the person who managed the dog. To raise an animal, and to manage it in a public place usually brings social and moral responsibility but also a legal responsibility for the fault that the dog may disrupt. Especially, the owner of the dog is responsible for the management of the dog by putting a collar on the dog and covering his mouth. On the other hand, it is a question whether dogs can also take the responsibility for the fault by euthanized.

 

I. Introduction

In Korea 2017, a case in which a person was bitten by a dog became an issue. This legal argument about the case where a person is killed by a dog can help solving issues surrounding situations like I mentioned just before. Let us start with the Korean culture about house animals, especially dogs.

 

IⅠ. Between “LIVESTOCK” , “FAMILY”,  and “FRIEND”.

In the past, Koreans usually raised dogs as the concept of livestock. Recently, dogs are fairly often raised as family and friends, not livestock. A Korean word “반려견”(a dog as a very faithful friend of one’s life) has been very popular in these days and this is an very important clue to diagnose Korean society’s recent atmosphere. Because of this sentiment, a lot of Korean people were very shocked by the news dog bite which was closely related to the bitten person’s death in 2017.

 

III. Legal issues

There are two main issues in this problem. First one is a legal notion of the dog owner’s “negligence” in Korean criminal law system, and the other is the notion of “causal relationship”, especially the causal relationship between dog bite and death is also a problem.

1. A notion of “negligence”[1]

If a dog bite cause the bitten person’s death and the dog owner’s negligence of caring his dog is found, he will be ruled by 과실치사(Kill a person due to carelessness) in the Korean criminal law. To be recognized as “과실치사” in Korea law, negligence is necessary, and it is a bit controversial whether a dog owner will simply accept the negligence of losing this lethal charge just because the owner have not pulled a collar and did not have a mouthpiece.

2. A notion of “causal relationship”

To be recognized as “과실치사”, the causal link between the dog bite and the death is needed. However, in usual, it is unclear whether the injuries are likely to result in death, or whether the bacterium is infected with other forms of infection. It may be a very controversial and we may be have to judge things case by case. In Korean law, it says

Criminal Law Article 17 (Causality) No act shall be punishable as a result of any act which is not connected to the occurrence of a risk of sin.

Causality in criminal law refers to the actor’s actions and the fact that the facts are related to cause and effect. Causal relationships in the criminal law are made within the domain of judicial value judgment, unlike general causal relationships judged by logical and natural sciences. The interpretation of Article 17 of the Korean criminal law differs according to the theories, but in the case of causality, the  outcome is not punishable unless there is substantial causality between the act and the outcome, and there are several criminal law theories to decide whether a causal link is exist or not.

1. Conditional Theory(조건설 in Korean.)[2]

It is a view that acknowledges causal relationships only if there is a logical condition that no results were produced without certain prior facts. This is also called the “hypothesis” because all the conditions for one result have the same value. Conditional theory has characteristics that do not distinguish between important causes and non-critical causes. Thus, conditional theory is not only too broad, but it can also lead to very unreasonable results in some cases.

2. Equivalent causation Theory(상당인과관계설 in Korean)[3]

It is a view that there is a considerable causal relationship between the causal relation theory and the general life experience of the general public. This is the position that the present Korean Supreme court is taking. However, the criterion of fairness of causality is still vague. It is not judged arbitrarily, and it is said that it is considerable if the public is considerable.

There is criticism that it treats fact judgment and normative judgment on the same level and confuses causality with result attribution.

3. “Condition that meets the law” Theory(합법칙적 조건설 in Korean).[4]

It is the view that causality is recognized when the result of Q is related to the action of P in natural law. This view seems to be similar to conditional theory at first, but unlike conditional theory, which emphasizes logical relations, the causal relation in the best natural science of the time is used as a judgment criterion. This view has the advantage of being able to grasp the causal relationship as it is, which is natural in the scientific sense, in recognition of the fact that it is beyond the concept of value causation of the existing criminal law. It is a law of the Korean criminal law academic society.

4. Objective attribution theory(객관적 귀속 이론 in Korean)[5]

In this rule, constructive causality is widely applied. In this process, it is understood that all conditions are equivalent to each other.

 

IV. Korean government’s recent movement on this issue

1.Related Laws

In Animal Protection Law of Korea, in public places, fines are imposed on guardians who do not have a collar or mouthpiece on his dog. According to the Animal Protection Act, scheduled for March 2018, the dog owner must observe the following:

Article 13 (Management of Animal to be Registered) (1) When the owner, etc., causes the animal to be registered to be removed from the place where the animal is to be registered, a tag shall be affixed to the animal to be registered, indicating the matters specified by the Ordinance of the Ministry of Agriculture, Forestry and Livestock and Food . <Amended on March 23, 2013>

(2) When a dog accompanied in public area, the owner shall take safety measures such as necklaces according to the provisions of the Agriculture, Forestry and Livestock Food Ordinance, and shall dispose of the excrement (in the case of urine, the common space inside the building such as the elevator / Chairs and other items on which the person can sit or sit) shall be collected immediately. <Amended on March 23, 2013, 2015.1.20.>

2. The administration’s definition[6]

The related public administration’s office of in this case is The Ministry of Food, Agriculture, Forestry, and Livestock.

The Ministry of Food, Agriculture, Forestry, and Livestock has announced that it will form a “Safety Management Task Force” to promote the improvement of the system. The Task Force includes the Ministry of Public Administration and Security, local governments, animal protection groups, and animal experts.

First, the Ministry plans to increase the fines . Plus The Animal Protection Act applies colloquia to registered animals, and more stringent safety management standards especially dangerous dogs like american pitbull terriers, and lot wilers. Furthermore, the reimbursement system that gives rewards to citizens who have filed a petition for a petitioner who does not fulfill the companion animal safety management obligation is set up in detail before the enforcement of the petition in March next year. In case of injury or death due to companion animals, the punishment standards will be set separately under the Animal Protection Act, and the punishment standards will be applied more strengthened than criminal law.

 

V. A dog who kills a person must be euthanized?

The other point related to this issue is that do we have to consider the euthanasia to the dog which killed a human being or not.

Animal euthanasia (euthanasia, Greek: ευθανασία (beautiful death)) refers to the act of direct and indirect means to cause death without suffering to an animal which is considered to be meaningless for treatment and life-sustaining reasons.

Animal euthanasia is an act that causes animals to die, leading to death or extreme medical treatment. Reasons for euthanasia include unhealthy (and especially painful) situations or witnesses, lack of resources to help the animal constantly, or experimental testing procedures. Euthanasia methods are designed to cause minimal pain and suffering

2. Related Laws

The legal ground for euthanizing animals is in the Livestock Epidemic Prevention Act. However, the purpose is limited to prevention of epidemics and prevention of spread.

According to the law, which will be enacted in May 2018:

Article 20 (Order to dispose of meat) (1) The mayor, the head of the county, or the mayor of the province, if it is deemed necessary to prevent the spread of the first livestock infectious disease prescribed by the Agriculture, Forestry and Livestock Food Ordinance, he must order the owner of the livestock with reliable epidemiological surveys, test results, or clinical signs to kill the livestock. However, if there is any epidemiological investigation or a close examination result or a clinical symptom that is believed to have been caught or suffered from a fever, swine fever, swine fever, swine fever, African swine fever or highly pathogenic avian influenza, He can order the owner of a livestock in an area where the epidemic spreads or is likely to spread, without delay. <Amended on March 23, 2013>

(2) The mayor, head of municipality or mayor of the head of province shall, if any of the following falls under any of the following subparagraphs, However, in cases where the disease is necessary, the farmer may suspend the disposal at a time within the period prescribed by the Agriculture, Forestry and Livestock Food Ordinance and isolate it from the place specified by the Agriculture, Forestry and Livestock Food Ordinance. <Amended on March 23, 2013>

1. If the owner of the livestock fails to fulfill the order under paragraph 1
2. Under the situation that do not know the owner of the livestock or do not know where the owner is,
3. In case the animal must be disposed of urgently in order to prevent the infectious disease from spreading, as prescribed by the Agriculture, Forestry and Livestock Food Ordinance

③ When the mayor, the head of the gun, or the mayor finds out that dogs and cats that are not vaccinated against rabies are roaming outside the building, he or she may arrest or dispose of them or take other necessary measures as prescribed by the Agriculture, Forestry and Livestock Food Ordinance have. <Amended on March 23, 2013>

3. Pros and Cons[7]

(1) Pros

From the standpoint of euthanasia, the dog must be held accountable for killing a person. The concern of Probability of occurrence of the same event again is also an important reason.

Also, people in this side think that the dog raised as a companion has reached that level even at the family level, so we have to treat them at least like humans in special cases like this : a dog killed a person. And it is also impossible and ineffective to punish these kind of dogs by other ways like isolating this dog for a long time in the jail or so. Plus, people in this side state that, because dogs usually act by their own experience, once a dog experience biting human being, the behavior becomes a natural connection. So once a dog start to bite people, it keeps biting and so on, and euthanizing this dog is the only and the most effective way to protect people from the hazardous dog.

(2) Cons

People on this side basically thinks that it is a little bit difficult to ask responsibility so seriously dogs are not like a rational person. Plus, they say that a situation like this – a human being is killed by a dog – is a very specific case. On the other side, in most other usual cases, we may also stimulate a dog to act weird or danger because we, human beings do not have enough understanding about the dog. So we have to see the situation in detail and then test the dog that is related to the human being’s death or injury. Plus, we’ll have to ask these animal psychologists or veterinarian whether euthanasia is a proper correction for this situation or not before blaming dogs.

 

VI. Conclusion

We’ve looked at the legal elements to make the dog owner legally responsible in Korean criminal law when a person is bitten by a dog and the death is followed. In particular, we have checked several theories to determine causality between two events.

However, Of course, the more important thing than determining legal casualty is to prevent this severe situation, and we still a need for management and regulation of dogs for everyone’s sake.

Furthermore, some people state that euthanizing dogs are needed to protect people from hazardous dogs, but I still think that euthanasia is not the only solution. We should focus on preventing accidents rather than euthanasia. It is time to establish a comprehensive management plan of the state and municipalities.

 

[1] Sung-don Kim, Criminal Law, SKKUP(SungKyunKwan University Press), 5, 472, (2017).

[2] Ibid. at 185.

[3] Ibid. at 188.

[4] Ibid. at 187.

[5] Ibid. at 189.

[6] 25th PRESS RELEASE: Strengthening companion dog safety management duty (trans. By Writer), Ministry of agriculture, forestry and fisheries, (January 18, 2018), http://www.mafra.go.kr/mafra/293/subview.do?enc=Zm5jdDF8QEB8JTJGYmJzJTJGbWFmcmElMkY2OCUyRjMxNTE1OSUyRmFydGNsVmlldy5kbyUzRg%3D%3D (last visited Jan. 28, 2018).

[7] [Euthanasia controversy] “It can bite somebody else again” vs “Is not it the responsibility of the dog owner?”(trans. By writer), CBS Nocut News, (October 25,2017), http://www.nocutnews.co.kr/news/4865894#csidx28607db371732f0a5bcf753f24c9a5d (last visited Jan. 28, 2018).

 

Chaneun.jung@ewhain.net