입법적 변화가 법원 판결에 미치는 효과에 관한 연구 - 장애인 성폭력 처벌 법제의 개정을 중심으로 -

Abstract

Trying to control the social problems often requires law reform. The reason of such a request is the expectation that legislative purposes will reflect on judicial decisions and result actual judgements. However, will law reform including raising statutory punishment always lead changes of punishment? This paper studied on the case of law reform of <Act on Special Cases concerning the Punishment, etc. of Sexual Crimes> in 2011 and change in courts’ sentencing. This law reform has contributed the legislative purpose as strengthening punishment in part. After the law reform, judgements have increased, provisions have diversified and judges’ sentencing length has risen. But this law reform has clear limitations. This case shows some results away from legislative purposes on three aspects. First, the law reform has some effects from unexpected directions. Second, it causes some results at opposite poles. Third, it cannot achieve its intended objectives. It has clear limitations for law reform to lead the change of judicial decisions as implied by the case study. Law makes unexpected results in combination with a variety of factors and produces the opposite effect to what is intended sometimes. Besides, court is not a transparent path that reflects legislative changes like it is. If some perspectives that hinder the realization of legislative purposes prevail among judges, law reform will bring results away from its original purposes. In the face of social problems, if we intend legal changes, we should consider various ways like these.