스토킹범죄의 처벌례의 분석과효율적 대응방안 연구- 「스토킹처벌법」 시행 이후 스토킹처벌법 위반 1심판결을 중심으로 -

Abstract

The purpose of stalking punishment law is to give a criminal punishment by clearly defining stalking as a crime, and to seek the prevention of crime by reflecting the measures to protect various victims as much as possible through the law at that time. The current stalking punishment divides stalking behavior and stalking crime, and defines the emergency measure and the emergency first aid are about stalking behavior and the provisional measure are about the stalking crime. However, in reality, it may not be easy to determine whether it is a situation that is merely a stalking act or a stalking crime, and in this case, it is difficult for an efficient response to be made immediately. The victims can’t know when they are attacked fatally if the proper response is not made immediately depending on the stalking, but the structure made of criminal justice system rather than police administrative action can make the immediate and powerful prevention measure difficult, which is vulnerable. It is urgent to improve the system into the rapid system by simplifying the procedures such as emergency first aid and provisional measure with reference to foreign legislation. Andy the effective period when the measures of approach prohibition continue should be extended 2-3 times to maintain the protection of victim stably at least while the case is in progress. In addition, it is necessary to substantially block harm by imposing strong sanctions when violating provisional measures such as approach provision. If necessary to prevent the recurrence of perpetrators, the detention system should be actively utilized, and the current arrest and restraint system should be appropriately used in practice to protect victims. It is necessary to refer to the fact that the German Criminal Procedure Act has special cases so that stalking crimes can be arrested. Looking at the precedents on stalking crime after the enforcement of the stalking punishment law, more than half of the convictions account for the probation and a large number of fines, so it seems far from the legislative purpose of strong response. And the history of violating emergency first aid or provisional measures is not dealt with very strictly, and many probations are sentenced. About 20% of the cases were dismissed due to the victim’s unwillingness to punish, and it is questionable whether it was because of the true intention of the victim. In order to secure the effectiveness of the stalking enforcement and protect the victim from the risk of recurrence of stalking, the provisions for no punishment against the will must be deleted, and prosecution must be filed regardless of the victim’s expression of unwillingness to be punished. And it is necessary to aggravate the punishment not only for stalking carrying a weapon, but also for cases where there is a history of being sentenced to death for stalking crime, or when the victim is a child or youth. The aggravated punishment should be regulated for the case when the stalking crime brings the serious result, and the improvement should be made so that the severe punishment commensurate with its responsibility is possible when the stalking crime has brought the danger to other’s life or body or stalking behavior results in the death of victim.