가정폭력에 대한 경찰의 개입과 그 한계

Abstract

Domestic violence is no longer a matter confined to households, but has become a serious social problem. The Korean legislature enacted the Act on the Punishment of Domestic Violence and the Act on the Prevention of Domestic Violence in 1997. From that time on domestic violence has been declared as a crime, and the offenders has to encounter sanction and/or punishment by the governmental authority. According to the 2013 Korea National Survey of Domestic Violence the rate of spousal abuse amounts to 45.5%, and 7.3% of respondents reports physical abuse, 37.2% emotional abuse, 5.3% economical abuse, 5.4% sexual abuse, 27.3% neglect. The rate of child abuse is 46.1%, and 10.3% of elders has suffered domestic violence. The domestic violence offender are subjected to either criminal penalty or protective measure by way of dual process, in which the prosecutor has the initiative to select a process leading to final adjudication. But the police takes the most important role to punish offenders and protect victims especially at the early stage of handling domestic violence cases. Police officers are obliged to team up with a professional counselor and rush to the scene whenever they receive calls on domestic violence. The police has a duty to stop violent acts and separate aggressor from victim as emergency measures. And the police may enter domiciles without permission for the purpose of an on-the-spot inspection. Futhermore the police is capable of imposing exigent provisional measures such a an order to remove and exclude the offender from the residence of the victim, an order to enjoin the offender from contacting with the victim around home and office, or an order to prohibit the offender from communicating with the victim electronically. Recently a new proposal to empower the police to detain a domestic violence offender who disobey exigent provisional measures has turned up. It puts emphasis on strengthening police responding against domestic violence, especially to ensure the safety of the victim. Actually breaches of provisional measures by the prosecutor are subject to administrative fine not exceeding 5 million won, and protective measure by the court is considered a criminal crime punishable with imprisonment not exceeding 3 years or fine not exceeding 30 million won. Already on-the-spot inspection / access and exigent provisional measures are available to police officers in relation to responding domestic violence. And the police officer can arrest the offender without warrant in the name of present culprit arrest or urgent arrest. It may be unnecessary and unconstitutional to allow the police to detain the domestic violence offender without the control of the prosecutor as an administrative enforcement only with the post-arrest warrant by the judge.