개정 성폭력특례법상 형사절차에서 19세미만피해자 보호 규정에 대한 검토

Abstract

The Constitutional Court's ruling of unconstitutionality, in July 2023, the Act on Special Cases Concerning the Punishment of Sexual Crimes was amended. The amendment removed the special provisions regarding the admissibility of recorded video evidence and introduced new provisions reflecting the protection of the defendant’s right to defense. Additionally, various systems were established to strengthen the protection of victims under 19 years old and prevent secondary victimization. The key aspects of the amendment included not only ensuring the defendant’s right to cross-examine when video recordings are used as evidence but also improving protective measures to secure the victim's free and sufficient testimony. Furthermore, the existing systems, such as pretrial preparation, evidence preservation procedures, and witness questioning via video transmission, were supplemented to provide better protection for victims under 19 years old. These systems are designed to effectively prevent secondary victimization of the victim while not substantially infringing on the defendant's right to cross-examine. However, some improvements are still needed. The special provisions regarding video recordings need to develop specific criteria that consider the psychological particularities of infants and children, distinguishing them from Article 314 of the Criminal Procedure Act. When appointing public defenders, the prosecutor should collect and reflect the victim's opinions. Also, it would be preferable for the specialized investigator who first interviews the victim during the investigation process to continue handling the victim’s case even after it has been transferred to trial. Utilizing pretrial preparation sessions is meaningful in that they allow the trial schedule to be programmed in advance, taking into account the nature of the crime and the characteristics of the victim, to minimize secondary victimization. However, making the pretrial preparation process mandatory should be considered. The “special provisions for witness questioning locations” can minimize secondary victimization when used in combination with existing victim protection measures without fundamentally infringing on the defendant’s right to defense. Given that the use of video recordings as evidence has become much stricter under the revised “special provisions for the admissibility of video recordings,” the importance of utilizing the “special provisions for witness questioning locations” to prevent secondary victimization has increased.