‘성인지 감수성’은 젠더편향적 기준인가? - 형사재판에서의‘ 합리적 의심’에 대한 재검토를 중심으로 -

Through an analysis of criminal judgments, this article confirms that judicial decisions based on a gender-sensitive perspective have a unique position as a tool to prevent confirmation bias in crimes of sexual violence. By analysing the decisions of the lower courts, this study seeks to identify trends in how judges have understood and applied the importance of a gender-sensitive perspective, and to classify the decisions analysed into three types according to their reasoning structure. Based on the reasoning structure of the Supreme Court decisions, a decision based on a gender-sensitive perspective has value in that it was made at the stage of upholding the reliability of the testimony despite the existence of doubtful circumstances, not at the stage of judging the reliability of the testimony per se. In addition, given the analytical findings that the reason for the criminal decision can reduce or increase the likelihood of confirmation bias, depending on the reasoning, it would be desirable for decisions that cite a gender perspective as a basis for the decision to include a clear judgement on the circumstances that might cast doubt on the credibility of the victim's testimony. The third type of decision classified in this article argues in detail why circumstances that cast doubt on the accusation cannot be a reason to reject the credibility of the victim's testimony. It can be assessed as using the gender perspective as a tool to overcome confirmation bias. In this study, we have interpreted the above argument structure of the third type of judgement as best fitting the unique function and status of the gendered perspective, showing that a gendered judgement is made in the process of considering whether the evidence of the accusation has reached the level of reasonable doubt. Let's now return to the question we posed at the beginning of this research. Does gender sensitive perspective undermine the presumption of innocence? The conclusion is that it does not. When combined with a thorough psychological and argumentative assessment, a gendered judgement that takes into account the specific circumstances of the victim strengthens the presumption of innocence by testing whether the prosecution's case has been proven beyond a reasonable doubt, and further strengthens the persuasiveness of the judgement.