“우리 가족 좀 내버려둬요”에 대처하는 판사의 자세 : 법원의 가정보호사건 처리 실무와 개선 방향

Abstract

As a special law of criminal procedure, the Domestic Violence Act has the same status as a basic law dealing with violence in intimate relationships. The success of the domestic protection system established by the Act depends more on its effective enforcement than on the protection orders themselves. In this article, we will reflect on the court's practice of handling domestic protection cases and explore ways to improve the practice. While the prosecution rate for domestic violence is less than 10%, the remand rate for domestic protection cases is around 30-40%. The typical domestic violence case is domestic violence by a male spouse against a female spouse, with injury and assault being the most common, and it is observed that the parties are now more or less accepting of the notion that violence is never acceptable. It is necessary to provide adequate training and incentives to law enforcement agencies in order to realize case handling standards that distinguish between reciprocal and confrontational violence and recognize qualitative differences in harm. Intimidation and property damage are areas where domestic violence laws have expanded the penalties, but they are not yet recognized as crimes, and domestic violence proceedings are tasked with educating parties that such behavior is not legally acceptable. Regardless of the victim's intentions, it is necessary to be cautious in revoking interim measures to ensure victim safety and prevent recurrence, and to make efforts to improve the effectiveness of interim measures, such as utilizing detention orders in the event of violations. The prosecutor's obligation to respect the victim's wishes in handling domestic protection cases has led to a tendency to rely on the victim's intention not to seek punishment in practice. While the court's investigation process is an essential part of the process to understand the current situation, educate actors, and support victims, the lack of investigators and delays in processing due to case backlogs can provoke resistance from the parties, and court contacts can be a source of tension. By communicating with victims and giving them the opportunity to express a range of opinions that are not framed in terms of whether or not they should be punished, courts can position domestic violence proceedings as a public process that begins to heal. In addition, when we listen to the victim's side of the story, we realize that it is often difficult to deny the need for an order of protection based on a desire for non-punishment alone. There is much criticism of the high dismissal rate in family protection cases, which is around 40%. The decision to dismiss should be taken with caution, given that it cannot be assumed that a dismissal and return to prosecution will result in a more severe punishment than a protective order, and that protective orders can be used to raise the offender's awareness and restore the victim, even if some of the charges are unsuccessful, the likelihood of reconciliation is low, or the parties are already separated, and the sanction is proportionate to the crime. Courts have operated pre-dispositional counseling or education programs in conjunction with dispositional decisions as a way to provide incentives for offenders to participate voluntarily and to achieve the goals of rehabilitation and restitution. Given the need for separation of perpetrators and victims, and the role of mental illness and alcohol dependence in domestic violence, there is a need to promote custodial and therapeutic placements during disposition. Counseling referrals have been used as a means to provide victims with counseling opportunities and have been reported to reduce recidivism rates. In the future, it is necessary to find counseling centers that can provide weekend, night, and foreign language counseling. Since the more willing the judge is to enforce, the higher the participation of the actor, it is necessary to expand the right to change the disposition for smooth enforcement and devise effective sanctions in case of non-compliance. In order to break the tendency to mechanically rely on the victim's unwillingness to seek punishment, it is necessary to consider removing “restoring peace and stability in the family” from the legislative objective and removing the obligation to respect the victim's wishes. To improve the timeliness of dispositions, consideration should be given to more active use of arrests and interim measures, particularly custodial orders, and direct police referrals to domestic violence courts. Moreover, substantial enforcement oversight, such as more investigators, internalization of probation, and enforcement dates, would maximize the effectiveness of the domestic violence process in achieving its ultimate goal of eliminating violence.