아동학대범죄의 구성요건 정비 방안

Abstract

More than six years after the Special Act on the Punishment of Child Abuse Crimes(hereinafter referred to as the Child Abuse Punishment Act) was enacted, the number of child abuse victims and the resulting death toll have continued to rise. Such a serious situation shows that discussions on the sophistication of criminal regulations on child abuse crimes are still needed, as well as the improvement of welfare policies and management practices to prevent child abuse. First of all, the Supreme Court's 2020 ruling, which believes that even if the "child" subject to protection and nurture becomes the subject of child abuse crime under Article 17 and Article 71 of the Child Welfare Act, shall be changed. Excluding children from criminals of child abuse crime is not only a systematic interpretation considering Article 3 of the Child Welfare Act, but also a way to avoid the problem of defining bullying between peers as an abusive crime. Next, the Supreme Court clearly defines the concept of physical behavior as more serious than emotional behavior in the case of tangible abuse, but the special nature of child abuse crimes does not justify this distinction and the court should not make a difference in types based solely on the distinction of physical and emotional abuse. In addition, the provision of "child's sexual shame" or "sex harassment" in sexual abuse crime is also a legislation that failed to take into account the aspect of children's sexual development. As a result, legislative measures need to be taken to stipulate specific criminal requirements for child abuse crimes, focusing on the Child Abuse Punishment Act. And then "Risk for the health and the physical･intellectual･emotional･social development of children" should be a common essential conceptual element of child abuse.