가정폭력관련법제의 개혁 ―민사보호명령제도의 도입과 관련하여―

Abstract

It is thirteen years since Act on Special Cases concerning the Punishment of Domestic Violence and Act on the Prevention of Domestic Violence and Protection, etc. of Victims thereof have enacted in 1997 and enforced in 1998. Meanwhile, these acts have significantly contributed to protecting the victims from domestic violence. However, first of all, current acts of domestic violence do not secure the effectiveness of victims because of dualistic system of acts related with domestic violence it causes confusion in the direction and policy. Secondly, although Act on Special Cases concerning the Punishment of Domestic Violence provides emergence measures of police officer, temporary protection measure by request of prosecutor as well as restraining order for protection measure and restriction of parental rights as criminal probation, these measures are not used well. Futhermore, these measures are a kind of criminal procedures and have some functional limitations, they can not protect the victims fully. Under this situation, Act on Special Cases concerning the Punishment of Domestic Violence was amended in June 29, 2011 and introduced “civil protection orders”. This amendment is estimated as a historical event on the legislative action against domestic violence in Korea. However, it still consists of dualistic system and the contents of protection orders are limited. It means that the scope of offenders and victims are narrow and the types of protection orders are not diverse. So, this paper critically examines the legislative characteristic and details of current acts relevant domestic violence and makes clear about the problems of the acts. After then, it comparatively analyzes American and Japanese legislative systems which have actively taken action against domestic violence for gaining implication for amendment. In conclusion, this paper insists on throwing out the current dualistic system and enacting uniform act combining criminal protection proceedings, civil protection orders and administrative support proceedings against domestic violence. Moreover, it suggests that it should extend the scope of party of domestic violence and the types of domestic violence, and should diversify protection orders for protecting victims effectively. Especially it argues a kind of limited protection order that the victim is free from domestic violence while she keeps in touch with the dependant.