아동 성범죄피해자 진술 영상녹화물 특례규정에 대한 위헌결정과 입법적 대안 고찰

Abstract

The Constitutional Court ruled that the legal provision in 「Sexual Violence Prevention and Victims Protection Act」 recognizing the admissibility of evidence of ‘video recorded Testimony of victims of sexual violence under 19 years old’ were unconstitutional. The reason is that the defendant's right to cross-examine is violated through the provision. Many revised bills have been proposed to eliminate this unconstitutional situation. In particular, the Ministry of Justice submitted a bill that suggested various alternatives based on the ‘Barnahus Model’. The system allows to conduct investigation in child-friendly facilities. To this end, several institutions including law enforcement agencies cooperate with each other “under one roof”. Through Barnahus model, it is possible to prevent a lot of secondary damage to child victims. In addition, the bill intends to investigate victims of child sexual abuse through a investigator with professional qualifications. On the other hand, ‘procedure for the preservation of evidence’ can be performed by a judge at the investigation stage. It is expected that the defendant's right to cross-examine can be guaranteed through this procedure. The Constitutional Court's decision has validity, in other words the defendant's right to cross-examine should be guaranteed legitimately. Nevertheless, there are also many problems with the above decision. For instance there is a risk of increasing secondary damage to child victims. The current legal situation needs to be resolved as soon as possible. There should be a plan to prevent secondary damage to the victim while guaranteeing the defendant's right to cross-examination. In this regard, the recent bill proposed by the Ministry of Justice can be an good alternative. However, it is the time when researches are needed to discover and solve the problems of the bill.