스토킹처벌법상 구성요건의 적용 및 한계

Abstract

The enactment of the 「Act on Punishment of Stalking」 has allowed exemptions for punishment and procedures for stalking crimes, and protection procedures for victims of stalking crimes to be stipulated, which becomes an opportunity to change the social awareness of stalking crimes and protect victims. However, since the components of a stalking crime require some abstract concepts and interpretations, the controversy may arise over future legal applications. Therefore, this paper aimed to suggest a standard in the interpretation of the Act on Punishment of Stalking by analyzing the Judicial precedent for violation of the 「Punishment of Minor Offenses Act」 and 「Act on Promotion of Information and Communications Network Use and Information Protection」, which have similar components to those of the 「Act on Punishment of Stalking」. Regarding the interpretation of the components, ‘in victim,’ it is reasonable to consider that a crime can be established if a stalker is implicitly and abstractly aware that he/she conducts an action of stalking against the will of a victim. In respect to ‘what causes anxiety and fear,’ it is deemed to be reasonable to judge anxiety and fear as a rational fear based on the rational judgment standard of the general public. In determining ‘reasonable ground,’ the urgency and supplementation of a relevant action should be comprehensively reviewed. Regarding ‘continuity, repetitiveness,’ repetitiveness is unnecessarily the same action to be repeated; although there are respectively different actions, they will fall under the term if the action corresponding to the category of a stalking action is repeated. In addition, it is desirable to interpret that repetitivenessㆍcontinuity is recognized even after a relatively long time has elapsed between actions. On the other hand, it is deemed to be reasonable for the protection of the victim to consider that an ‘action of reaching’ online stalking has been reached if a victim can objectively recognize it, regardless of whether the victim is actually aware of it. Regarding collectionㆍuseㆍpostingㆍdistribution of personal information will be punished by the 「Act on Punishment of Stalking」 newly established, but if they are clearly defined as online stalking, it will lead to ensure clarity of punishment and prevent a gap in punishment. It is deemed to continuously put efforts to review and amend the behavior category of stalking, such as online stalking, tracking, distributing, and posting personal information frequently found from stalking damages, in the future although not reflected in the legislation.