가정폭력처벌법상 의무체포제 도입 관련 문제점과 대안 모색 - 피해자 보호를 위한 형사정책의 타당성과 쟁점 분석 -

As domestic violence has become an increasingly urgent social issue, the introduction of a U.S.-style mandatory arrest policy has been actively debated in Korea. Domestic violence is characterized by repetition and escalation, often developing into serious offenses. Therefore, early and immediate intervention is critical for victim protection. However, current practice reveals structural limitations: non-intervention upon the victim’s request. Fears of retaliation, and the burden of maintaining family relationships often discourage victims from seeking punishment. The Domestic Violence Act’s emphasis on respecting the victim’s wishes further constrains police intervention, creating persistent calls for mechanisms that can effectively isolate offenders at the reporting stage. Mandatory arrest, introduced in the United States in the 1980s amid growing concern over intimate partner violence, requires police officers to arrest the offender regardless of the perceived severity of the incident. While this system strengthens early intervention and facilitates immediate separation of victim and offender, several challenges arise when considering its adoption in Korea. This article focuses on two central issues: (1) the compatibility of mandatory arrest with the Korean legal framework, and (2) problems revealed in the operation of the system in the United States, particularly with regard to victims’ interests. In the U.S., arrest functions as a procedural step toward judicial detention, whereas in Korea, arrest constitutes an independent and significant deprivation of liberty. This structural difference raises concerns about systemic inconsistency if the U.S. model were incorporated directly. Furthermore, empirical evidence from the U.S. shows that mandatory arrest may disregard victim autonomy, restrict police discretion, reduce reporting rates, increase dual arrests, and fail to account for the diversity of victim experiences. After examining these issues, the study explores policy alternatives more suitable for the Korean context. First, explicitly adding “victim protection” as a ground for arrest or detention may institutionalize victim safety but it also risks pushing arrest and detention beyond their original conceptual function as coercive measures, thereby warranting particularly careful scrutiny. Second, the preferred arrest model used in some U.S. jurisdictions offers a more flexible approach by mitigating the rigidity of mandatory arrest. Third, making violations of protective orders under the Domestic Violence Act a mandatory arrest trigger could provide a balanced intermediate response, enhancing on-site intervention while preventing overuse of criminal sanctions. Through a comparative and critical analysis of mandatory arrest, this study seeks to identify the conditions under which criminal justice policies aimed at victim protection can be justified and where the limits of state intervention should be drawn. The findings offer meaningful implications for the design of future policies addressing intimate partner violence more broadly.