성폭행 피해자에 대한 무고죄 판단기준에 관한 고찰 – 성인지 감수성 법리와 관련하여

Abstract

The principle of free evaluation or freedom of evidence evaluation, which promotes specific rationality in the recognition of facts, is clearly the grand principle of criminal trial. However, there are also inherent limitations of logic and empirical rules, and the recognition of facts is eventually based on the judge’s values, beliefs, and experiences, so errors in factual evaluation may be pointed out. Although in the case of Sexual Assault, there is no reason for the evaluation of evidence to change compared to other cases, it is very important to judge the credibility of the facts based on gender sensitivity in light of the reality that gender power relations still exist in our society and the characteristics of victim statements. In a specific case, the judge should actively accept the Supreme Court’s view that the victim’s statement should not be lightly rejected due to misunderstandings and prejudices about rape or victimhood that may exist. Even if the meaning and specificity are somewhat ambiguous, a correct understanding of the legal principles of gender sensitivity is required. This is also valid for investigative agencies and prosecution agencies. In the case of False Accusation of Rape, in order to break away from the perpetrator-centered culture, perception, and structure of our society and raise gender equality awareness, charges and innocence should be judged in consideration of the specific situation of the victim who claims to have been sexually assaulted by applying the law of gender sensitivity. Specifically, it is based on acknowledging the credibility of the victim’s statement, whether the victim’s motive or reason for making a false statement against the perpetrator is clear, whether it is unreasonable against the rules of experience, and whether it is inconsistent, contradictory, or intentional. If necessary, the recognition of facts should be supplemented with expertise by experts during the investigation and trial process.