가정폭력특례법의 문제점과 개정방향

Abstract

Fifteen years have passed since the Act on Special Cases concerning the Punishment, etc. of Crimes of Domestic Violence (enacted Dec. 13, 1997, hereinafter “the Act on the Crimes of Domestic Violence”) was enacted. It has undergone continuous amendments in its deficient parts, yet the Act on the Crimes of Domestic Violence still contains parts that need to be amended. The Act on the Crimes of Domestic Violence achieved good results in expanding recognition that domestic violence is no longer a problem merely in the private arena, but constitutes a crime based on gender discrimination. Nevertheless, it does not appear that domestic violence has decreased and the situation has been improved through enforcement of the Act on the Crimes of Domestic Violence. Rather it is criticized in a very strong way that the current Act on the Crimes of Domestic Violence has been failing to prevent effectively domestic violence occurring in our society. Our country’s measures to cope with domestic violence mostly focus on criminal law aspects, and they are not suitable as coping measures against domestic violence which has characteristics of a private matter. Amendment is needed, which refers to “Gewaltschutzgesetz (GewSchG)” of Germany which is a special rule for civil disposition with regards to domestic violence. “Gewaltschutzgesetz (GewSchG)” which Germany introduced in 2002 has characteristic as comprehensive law covering civil law․criminal law and other areas although it addresses mainly violence crimes. In this law, major civil disposition against a domestic violence perpetrator is depriving him/her of the right to residence and ordering him/her to leave it, which has been very effective in preventing domestic violence. Our country’s current Act also adopts a victim protection order, one of civil dispositions, but it fails to do a main function. It is a mere subsidiary disposition in the whole legal framework. Thus, civil measures based on essential characteristic of domestic violence crimes are needed as effective measures against domestic violence crimes. The Act on the Crimes of Domestic Violence needs to be combined with the Act on the Prevention of Domestic Violence and Protection, etc. of Victims with a civil protection order as the main content.