성폭력 2차피해에 대한 국가손해배상소송의 쟁점

Abstract

This study examines disparities between legal procedures and realities through issues analyses of damage claim against state concerning secondary victimization which victims of sexual violence experience in criminal procedures. For this, case study is used as methodology and it is analyzed damage claim against state suit files(total 6 suit cases and 11 victim cases). The lawsuits brought by the victims who experience unfair human rights violations during criminal procedures against the state are basic rights of the victims, simultaneously they are the only formal procedures victims could take. The analyses of the lawsuit files have meaning for them to argue their rights affirmatively in the actions. Above all, in this study, it is analyzed illegality judgement standards of public officials focused on cases of damage claims against state. Public official's judgement standards are main issues of the claims concerning secondary victimization in criminal procedures. Current judgement standards, which mean "it is recognized in the case of distinctively unfair or hardly affirmation of the rationality," omit suffering of the victims and distinctiveness of sexual violence damage regarding secondary victimization. In addition, though the victims are injured parties of the accidents, commonly they are marginalized in the criminal procedures. It means that they are treated as the weak who need to be cared carefully by courts and law enforcement agencies based on the law and policies for protection of victims, rather than the subjects who have human rights. Actions brought by the victims against the state with the respect to the secondary victimization have meaning as they question violations of their rights by the unfair execution of state power and furthermore, require damage claim to the state. However, it would be needed subsequent studies regarding damage claims against the state can contribute to expansion of victims's rights or they only regenerate damages again within current law schemes. This study is detailed monitoring to the implementation of victims' rights in law and comments for the re-constitution of victim's rights in it.