가정폭력에 대한 국가 책임- 국가의 적극 의무 및 상당 주의의무에 관한 유럽인권재판소 판례 분석을 중심으로 -

Domestic violence is one of the most difficult issues although human rights have been improved domestically and internationally. Traditionally, domestic violence had been considered as a private matter that states could not intervene. However, the legislation has changed so that domestic violence is recognized as a crime and punishment against the perpetrator is possible. Nevertheless, domestic violence has not diminished. In order to eradicate domestic violence, the international community is moving toward a tendency to impose state responsibility on domestic violence. Beyond the negative obligations not to infringe human rights, states obliges to take all appropriate measures to resolve domestic violence. In particular, states are required to discharge their duties with due diligence, which includes prevention, protection, punishment and provision of compensation. State’s positive obligations and due diligence principle regarding domestic violence has been practically applied through the case law of the European Court of Human Rights. With regard to investigation and punishment on domestic violence, the Court ruled that there are violations of duties on the grounds that the authorities did not respond promptly to the complaints of domestic violence and the authorities, if there is the necessity to investigate and prosecute, shall have investigated and punished the perpetrator regardless of complaints. With regard to protection, the Court determined that the State must take protective measures to avoid the risk regardless of victim’s withdrawal of complaints if the State knew or ought to have known the real and immediate risk to the life of an identified individual. It should be noted that the Court judged that the State is responsible for the violation of victim’s rights if the State failed to fulfill such obligations with due diligence. Unfortunately, domestic violence reports increase every year in Korea. Moreover, cruel domestic violence cases including Ansan domestic violence cases which resulted in homicide have been reported. International discussion to acknowledge state responsibility on domestic violence gives the Korean legislation and practices several implications. First, domestic violence cases should be discussed from the perspective of domestic violence. Rather than focusing on ‘assault’ of the perpetrator, the cases need to be strictly considered as ‘domestic violence’ cases in view of their characteristics such as victims’ prolonged and secret damage and its negative influence on children, etc. Second, legislative and practical implementation of prevention, protection, investigation and punishment on domestic violence is required. With regard to prevention of domestic violence, appropriate counseling should be provided for the victim and it is necessary to revise the regulations on mandatory education for professional personnel related to domestic violence. With regard to punishment, domestic violence complaints should be investigated without delay and, if necessary, prosecuted according to the criminal law. With regard to protection of domestic violence, effective measures should be enforced according to the victims’ requests for protection, and if the authorities know or ought to have known, necessary measures should be operated regardless of victims’ request. Finally, it is necessary to understand that states are legally responsible for breach of their positive obligations and due diligence.