「가정폭력범죄 처벌 등에 관한 특례법」 입법 목적 달성을 위한 수단의 적정성 검토

It has been 30 years since the Special Act on Domestic Violence was enacted in Korea. The Special Law on Domestic Violence consists of a dual system of the Punishment Act and the Prevention Act. Each Special Act has its own legislative purpose. In other words, the purpose of the Punishment Act was to foster a healthy home through the correction of the offenders, and the Prevention Act was to foster a healthy home through the protection of the victim. The Punishment Act establishes special rules for criminal punishment procedures for domestic violence crimes in order to correct the offender, and stipulates that such purposes shall be achieved through domestic protective measures to treat the causes of domestic violence crimes. It was based on the fact that improving the offender and protecting the victim cannot be separate measures, since the protection of home members such as the victim can be achieved if the cause of the offender's crime can be improved by implementing the domestic protective measures. Nonetheless, the legislative purpose of the enacted Punishment Act was criticized for being inactive in protecting victims, and the amendment on April 12, 2011 added the purpose of "protecting the human rights of victims and their family members," and the amendment on July 25, 2011 introduced victim protective orders and temporary protective orders. However, these criticisms and additions for legislative purpose are far from the goal of the Punishment Act. This is not to say that the purpose of protecting victims from domestic violence is unnecessary, but that it is a dual system of Punishment and Prevention Acts, and that even though there are various dispositions to protect and support victims in the Prevention Act, it is questionable whether new measures should be introduced to protect victims in the Punishment Act. Such systemic inconsistency is likely to cause confusion in the purpose of improving the offenders of the Punishment Act and in the operation of the means to achieve it. There is nothing special about the fact that the contents of the victim protective orders or the temporary protective orders introduced for the protection of the victim are only a part of the existing domestic protective measures, and the disposition is also a measure to control the offender rather than a direct disposition to protect the victim. Based on this awareness of these issues, we examined whether there is a complete legal system and enforcement system that can functionally work for each disposition of domestic protective measures and victim protective orders.