미성년 성폭력피해자 진술의 영상녹화물 증거사용에 관한 고찰 -헌법재판소 2021. 12. 23. 선고 2018헌바524 결정을 중심으로-

Abstract

Sexual violence is a crime that violates an individual’s freedom of sexual self-determination. The freedom of sexual self-determination belongs to human personal freedom, and sexual violence crimes are often referred to as personality murder or soul murder. Although all crimes are carried out in a form contrary to the victim’s intention and expectations, it indicates that sexual violence crimes have a great impact on the victim’s body as well as personality and psychology. For this reason, special careful consideration and attention are required in the investigation and trial process. In particular, if the victim is a child, special consideration or protection devices are required in the investigation and trial process due to the characteristics of sexual violence crimes and the vulnerability unique to the victim. In certain cases without a court statement, special provisions that recognize the admissibility of evidence of the video in which the statement at the investigation stage was filmed have functioned as a protection device for the victim. However, the Constitutional Court recently ruled that Article 30 (6) of the Sexual Violence Punishment Act, which can recognize the admissibility of evidence in the video statements of minor sexual violence victims, was unconstitutional by the court statements of trusted persons or assistants who were present during the investigation process. With the Constitutional Court's decision, video recordings of underage sexual violence victims can no longer be recognized as a special case of evidence ability, and the record of statements against victims is not recognized as an exception to Article 314 of the Criminal Procedure Act alone, repeated statements of underage sexual violence victims are inevitable. Now, it is urgent to come up with new legislative solutions that can harmoniously seek the protection of minor sexual violence victims and guarantee the right to cross-examination. The bill to strengthen the evidence preservation procedure eventually forces the prosecutor to apply for the evidence preservation procedure unconditionally for the victim's statement. However, if there are cases where the evidence preservation procedure cannot be performed, in practice, it is necessary to make every effort to protect the victim in the court. In particular, the protection system needs to be thoroughly reorganized in criminal proceedings so that the rights of minor victims are not unfairly restricted, given that the court testimony causes anxiety due to the memory of the case and shocks the victims as much as the crime during the violent impeachment process. In addition, it is necessary to come up with specific legislative solutions that prohibit unnecessary questions to prevent secondary damage to minor sexual violence victims, such as the U.S. Sexual Violence Victims Protection Act and the Federal Criminal Code. However, above all, it is time to reconsider the legislator's decision to impose exceptional special provisions on sex crimes and child abuse crimes against children and adolescents.