아동복지법 정서적 학대 조항의 명확성 검토

Abstract

Emotional abuse prohibited by the Child Welfare Act includes ① abuse by the exercise of tangible force without physical injury and ② abuse without the exercise of tangible force. Interaction between humans inevitably affects emotions that mean subjective feelings and perceptions. Therefore, it can be frequently pointed out that it violates the void-for-vagueness doctrine, especially when punishing the latter. In response, the Constitutional Court said the emotional abuse clause does not violate the void-for-vagueness doctrine for the following reasons: ① There is a need to punish a variety of emotional abuse that cannot be stereotyped for child welfare. ② Emotional abuse, subject to criminal sanctions, is limited to the degree of abandonment and neglect. ③ Although it may be vague to the subjects (the ordinary person) what kind of actions can be included, it can be embodied through the interpretation of the judge. However, emotional abuse, according to the judiciary, includes a variety of activities one's daily life without requiring tangible force exercise, intention to abuse or visible consequences of abuse. Therefore, the ordinary person, who is the principal reviewer of the void-for-vagueness doctrine cannot decide whether to do so or not by seeking the assistance of a legal expert individually for each of their actions. (Lack of fair notice function) And the judiciary tends to recognize it as an act of emotional abuse, even if it is not at the level of abandonment or neglect. Futhermore the judiciary's judgment on whether to recognize emotional abuse in the event of physical and sexual abuse is inconsistent. These phenomena are due to the lack of sufficient decision-making standards for law enforcement agencies to determine which acts constitute emotional abuse. (Lack of prohibiting arbitrary and discriminatory enforcement function) Therefore, even if we acknowledge the need to punish a various forms of emotional abuse that cannot be stereotyped for child welfare, we need to seek ways to enhance the clarity of the current emotional abuse provisions. In order to achieve this objective, we can consider the strict recognition of intention, the adoption of limited exemplarism, and the avoidance of duplicate recognition of emotional abuse.