형사사법분야 법집행공무원 성인지 조사 및 젠더폭력 관련 판례분석 실태조사

목차

제1장 | 서론 3

제1절 연구의 배경과 목적 ·····································································································3
제2절 연구의 내용과 방법 ·····································································································4

제2장 | 연구배경 및 문헌검토 9

제1절 성인지 감수성 관련 선행 연구 ···················································································9
1. 성인지 감수성의 정의 및 개념 ·····················································································9
2. 성인지 감수성의 구성 요소 및 측정 도구 ·································································12
가. 성인지 감수성의 구성 요소 ···················································································12
나. 성인지 감수성의 측정 도구 ···················································································13
제2절 젠더폭력에 대한 형사사법분야의 성인지적 대응의 필요성 ·····································17
제3절 젠더폭력 사건 수사 과정에서의 2차 피해 유형 문헌 연구 ··································20
1. 2차 피해의 개념 ···········································································································20
2. 수사기관에 의한 2차 피해의 원인 ··············································································23
가. 성차별적 인식과 낮은 성인지 감수성 ···································································23
나. 강간 통념 ················································································································23
다. 수사 시스템 및 구조의 문제 ·················································································24
3. 수사과정에서 발생하는 2차 피해 유형 ·······································································25

제3장 | 젠더폭력사건 법집행공무원의 성인지 실태조사 29

제1절 조사 개요 ····················································································································29
1. 조사 항목 ······················································································································29
가. 성평등에 대한 인식 ································································································31
나. 제로섬 신념 ············································································································33
다. 4대 폭력에 대한 통념 ····························································································35
라. 이차피해 수사행동 ··································································································36
마. 성평등 정책 및 교육에 대한 인식 ········································································37
바. 타당도 척도 ············································································································38
2. 조사 표본 및 절차 ·····································································································40
3. 분석 방법 ······················································································································40
제2절 설문 타당도 및 사회적 바람직성 척도의 기술통계 ·················································41
1. 설문 타당도 검증 ·········································································································41
2. 사회적 바람직성 척도의 기술통계 ··············································································42
3. 사회적 바람직성 척도를 이용한 설문 타당도 ····························································44
제3절 설문 응답자의 사회인구학적 특성 ············································································44
1. 전체 표본의 일반적 특성 ····························································································44
2. 경찰과 검찰 조사대상자의 일반적 특성 비교 ····························································45
3. 경찰 조사대상자의 직업적 특성 ··················································································47
4. 검찰 조사대상자의 직업적 특성 ··················································································48
제4절 성인지 감수성 관련 심리검사 척도 ··········································································50
1. 한국형 개정 남녀평등의식 검사 ··················································································50
가. 개정판 남녀평등의식 검사의 기술통계 ··································································51
나. 개정판 남녀평등의식 검사의 경찰집단 내 소집단별 차이 ···································53
다. 개정판 남녀평등의식 검사의 검찰집단 내 소집단별 차이 ···································54
2. 온정적 성차별의식 척도 ······························································································57
가. 온정적 성차별의식 척도의 기술통계 ·····································································58
나. 온정적 성차별의식 척도의 경찰집단 내 소집단별 차이 ·······································59
다. 온정적 성차별의식 척도의 검찰집단 내 소집단별 차이 ·······································60
3. 한국판 제로섬 신념 척도 ····························································································63
가. 한국판 제로섬신념 척도의 기술통계 ·····································································63
나. 한국판 제로섬신념 척도의 경찰집단 내 소집단별 차이 ·······································63
다. 한국판 제로섬신념 척도의 검찰집단 내 소집단별 차이 ·······································65
4. 젠더지위 제로섬 신념 척도 ·························································································65
가. 젠더지위 제로섬신념 척도의 기술통계 ··································································65
나. 젠더지위 제로섬신념 척도의 경찰집단 내 소집단별 차이 ···································67
다. 젠더지위 제로섬신념 척도의 검찰집단 내 소집단별 차이 ···································67
제5절 4대폭력 통념 및 이차 피해 수사행동 측정 검사 ····················································71
1. 4대 폭력에 대한 통념 척도 ·························································································71
VI │ 형사사법분야 법집행공무원 성인지 조사 및 젠더폭력 관련 판례분석 실태조사
가. 4대 폭력에 대한 통념 척도의 기술통계 ·······························································71
나. 4대 폭력에 대한 통념 척도의 경찰집단 내 소집단별 차이 ·································71
다. 4대 폭력에 대한 통념 척도의 검찰집단 내 소집단별 차이 ·································72
2. 이차피해 수사행동 척도 ······························································································75
가. 이차피해 수사행동 척도의 기술통계 ·····································································75
나. 이차피해 수사행동 척도의 경찰집단 내 소집단별 차이 ·······································76
다. 이차피해 수사행동 척도의 검찰집단 내 소집단별 차이 ·······································77
제6절 성평등 정책 및 교육에 대한 인식 ············································································79
1. 성평등 정책 및 교육에 대한 인식 척도 ·····································································79
가. 성평등 정책에 대한 인식 척도의 요인분석 및 기술통계 ·····································79
나. 성평등 정책에 대한 인식 척도의 경찰집단 내 소집단별 차이 ····························80
다. 성평등 정책에 대한 인식 척도의 검찰집단 내 소집단별 차이 ····························83
제7절 각 척도에 대한 경찰과 검찰의 평균차이 ·································································85
1. 한국형 개정 남녀평등의식 검사 ··················································································85
2. 온정적 성차별의식 척도 ······························································································85
3. 한국판 제로섬 신념 척도 ····························································································85
4. 젠더지위 제로섬 신념 척도 ·························································································85
5. 4대 폭력에 대한 통념 척도 ·························································································87
6. 이차피해 수사행동 척도 ······························································································87
7. 성평등 정책에 대한 인식 척도 ···················································································87
제8절 측정 변인들의 상관관계 및 회귀분석 ·······································································89
1. 측정 변인들 간의 상관관계 ·························································································89
2. 측정 변인들의 다중회귀분석 ·······················································································90
가. 4대폭력에 대한 통념의 다중회귀분석 ···································································91
나. 이차피해 수사행동에 대한 다중회귀분석 ······························································93

제4장 | 성인지 실태 및 강화방안 심층면담 조사 99

제1절 조사개요 ·····················································································································99
1. 조사대상 ·······················································································································99
2. 조사방법 ······················································································································100
제2절 법집행공무원 심층면담 결과 ···················································································102
1. 조사 대상자의 특성 ···································································································102
2. 수사 경찰 ····················································································································103
가. 최근 젠더폭력사건 수사 현황 및 특징 ·······························································103
나. 2차 가해로 이어질 수 있는 수사 관행 ·····························································105
다. 2차 가해 방지를 위한 경찰내 변화 ····································································109
라. 성인지 감수성의 개별 및 조직 차이 ···································································110
마. 피해자 지원기관과의 역할 차이 ··········································································112
바. 성인지 감수성 강화방안: 교육의 중요성 ·····························································113
3. 검찰 및 법원 ··············································································································113
가. 최근 검찰(법원)의 성인지 감수성 수준 ·······························································113
제3절 피해자 지원기관 실무전문가 심층면담 결과 ··························································130
1. 조사 대상자의 특성 ···································································································130
2. 피해자 지원기관 실무전문가 심층면담 분석 결과 ···················································131
가. 최근 동향 ··············································································································132
나. 법집행공무원의 성인지 감수성에 대한 인식 ·······················································137
다. 법집행 절차와 체계 ······························································································150
라. 대안 ·······················································································································163

제5장 | 젠더폭력 사건의 양형기준과 판례 및 소송기록 분석 179

제1절 젠더폭력의 정의 및 성폭력 범죄의 양형기준 ························································179
1. 젠더폭력과 성폭력 범죄의 정의 및 유형 ·································································179
2. 성폭력 범죄 양형기준 ································································································181
가. 13세 이상 사람에 대한 강간죄 ············································································181
나. 13세 이상 사람에 대한 강제추행 ········································································186
다. 13세 이상 장애인 및 궁박 청소년 대상 성폭력 범죄 ·······································189
라. 13세 미만 사람에 대한 성폭력 범죄 ··································································190
마. 군형법상 성폭력 범죄 ··························································································192
바. 성폭력 범죄로 인한 상해, 치상 ···········································································192
사. 성폭력 범죄로 인한 치상, 살인 ···········································································195
아. 성폭력 범죄의 집행유예 기준 ··············································································196
3. 디지털성범죄 양형기준 ······························································································198
4. 소결 ·····························································································································203
제2절 성폭력 범죄 판결의 수사자료와 판결문 분석 ························································205
1. 분석 대상 판결문 선정 기준 ·····················································································205
2. 강간 등 사건 – 대법원 2019. 3. 28. 선고 2019도1108 판결 ································206
가. 인정된 사실관계 ···································································································206
나. 사건 진행 경과 ·····································································································206
다. 법원의 결정 ··········································································································208
라. 평가 ·······················································································································212
3. 강제추행 사건 – 대법원 2020. 12. 24. 선고 2020도7981 판결 ····························213
가. 인정된 사실관계 ···································································································213
나. 사건 진행 경과 ·····································································································213
다. 법원의 판결 ··········································································································213
라. 평가 ·······················································································································216
4. 카메라등이용촬영, 음란물제작ㆍ배포 등 사건 -  대법원 2021. 11. 11. 선고 2021도 11753, 2021전도112 판결 ·····························216
가. 인정된 사실관계 ···································································································216
나. 사건 진행 경과 ·····································································································217
다. 법원의 결정 ··········································································································218
라. 평가 ·······················································································································220
5. 가정폭력 사건 - 서울고등법원 2022. 6. 9. 선고 2022노577 판결 ························220
가. 인정된 사실관계 ···································································································220
나. 사건 진행 경과 ·····································································································221
다. 법원의 판결 ··········································································································222
라. 평가 ·······················································································································223
6. 친밀한 관계에서의 폭력 사건 – 인천지방법원 제1-2형사부 2021. 11. 25. 선고 2021노3178 판결 ························223
가. 인정된 사실관계 ···································································································223
나. 사건 진행 경과 ·····································································································224
다. 법원의 판결 ··········································································································224
라. 평가 ·······················································································································225
제3절 2021년 성폭력 사건 하급심 판결문 분석 ·······························································226
1. 분석 대상 판결 ···········································································································226
가. 선정기준 ················································································································226
나. 분석대상 판결 개요 ······························································································226
2. 세부 분석 기준 ···········································································································233
가. 판결 내용 분석 기준 ····························································································233
나. 양형사유 분석 기준 ······························································································234
3. 분석대상 판결문 내용의 비판적 검토 ·······································································234
가. 성폭력 통념 ① 피해자답지 않다 ········································································234
나. 성폭력 통념 ② 피해자유발론 ··············································································239
다. 성폭력 통념 ③ 피고인이 피해자가 동의하였다고 착각하였을 것이다 ·············241
라. 성폭력 통념 ④ 고소에 다른 목적이 있을 것이라는 의심 ·································247
마. 성폭력 통념 ⑤ 성적수치심을 일으키는 행위라고 볼 수 없다 ··························251
4. 강간죄 유형 판결문 양형분석 ···················································································255
가. 불리한 정상 ··········································································································255
나. 유리한 정상 ··········································································································259
다. 권고형의 하한보다 낮은 형을 선고한 판결들 ·····················································262
5. 강제추행죄 유형 판결문 양형분석 ············································································263
가. 불리한 정상 ··········································································································263
나. 유리한 정상 ··········································································································265
다. “처벌불원”을 달리 해석한 판결들 ·······································································268
6. 준강간·준강제추행죄 유형 판결문 양형분석 ·····························································271
가. 불리한 정상 ··········································································································271
나. 유리한 정상 ··········································································································272
7. 카메라등이용촬영죄 판결문 양형분석 ·······································································274
가. 불리한 정상 ··········································································································274
나. 유리한 정상 ··········································································································276
제4절 소결 ···························································································································280

제6장 | 해외 주요 국가 젠더폭력 관련 양형기준 및 양형판례 분석 285

제1절 비교분석의 범위 ·····································································································285
제2절 이스탄불협약 ············································································································285
1. 성립 및 협약국 ···········································································································285
2. 주요 내용 ····················································································································286
가. 실체법적 사항 관련 협약내용 개관 ·····································································286
나. 강간죄의 정의 ·····································································································287
3. 유럽인권재판소 판례: M.C. v Bulgaria 사건 ···························································288
가. 사실관계 및 사건의 경과 ···················································································288
나. 유럽인권재판소의 판단 ·························································································289
제3절 독일 ···························································································································290
1. 성범죄 유형·성립요건 관련 최근 주요 입법 ····························································290
가. 제50차 형법개정(2016.11.4.)의 주요 내용 ··························································290
나. 제59차 형법개정(2020.9.10.) ················································································293
2. 성범죄에서의 양형 ···································································································293
가. 주요 성범죄의 법정형 ··························································································293
나. 선고형 산정 방법 ·································································································295
3. 성범죄 양형 관련 사례 및 판례 ··············································································297
가. 아동에 대한 성적 남용에서 징역 8개월의 집행유예를 선고한 사건 ·················297
나. 아동·청소년음란물 범죄의 법정형 상향 배경 ·····················································299
제4절 영국 ···························································································································300
1. 주요 성범죄의 성립요건 및 법정형 ··········································································300
2. 선고형 산정 절차·방법 ······························································································301
가. 일반 양형가이드라인 ··························································································301
나. 수죄의 경우 전체형 산정방법 ··············································································302
3. 주요 개별 성범죄 양형기준 ·······················································································304
가. 강간죄 양형기준 및 13세 미만자에 대한 강간죄 양형기준 ·······························304
나. ‘아동음란이미지 제작 등 죄’ 및 ‘아동성착취영상 촬영·송출의 죄’의 양형가이드라인 ···································································313
제5절 미국 ···························································································································320
1. 연구범위 ······················································································································320
2. 미국의 주요 성범죄 성립요건 및 법정형 ·································································320
3. 미국 연방법상 선고형 산정 과정 및 기준 ·······························································322
4. 연방 성범죄 양형기준 ································································································324
가. 성범죄 유형별 범죄등급 결정 기준 ·····································································324
나. 범죄등급 조정 ·······································································································332
다. 범죄이력 등급 ·······································································································334
라. 양형구간의 확정 ···································································································335
제6절 일본 ···························································································································336
1. 성범죄의 성립요건 관련 최근 주요 입법 ·································································336
가. 2017년 「형법」 개정을 통한 성범죄 관련 입법 및 개정 ····································336
나. 성범죄에 관한 형사법 검토회 ··············································································338
다. 관련 판례 ··············································································································340
2. 성범죄에서의 양형 경향 ····························································································343
가. 주요 성범죄 및 법정형 ························································································343
나. 성범죄에서의 양형 경향 ·······················································································344
3. 성범죄의 양형에 영향을 미치는 요인들 ···································································355
가. 범죄상황 (범정) ·····································································································355
나. 일반상황 ················································································································356
다. 피해감정, 피해배상, 합의 등 ···············································································357
제7절 대만 ···························································································································358
1. 대만의 성범죄 ············································································································358
가. 법령 개관 ··············································································································358
나. 법률 ·······················································································································361
다. 규칙 – 성범죄방지법 시행세칙(性侵害犯罪防治法施行細則) ·································370
라. 명령 ·······················································································································371
2. 성범죄 양형기준 ·········································································································373
가. 형법상 양형기준 ···································································································373
나. 성범죄에서 양형주의사항 ·····················································································374
다. 성자주권 방해죄 관련 양형참작사유 ···································································380
라. 성자주권 방해 관련 집행 예정 형죄 수와 형량 통계표 ····································384
마. ｢형사사건 적정 양형 형법｣ 초안(「刑事案件妥適量刑法」草案) ·····························390
3. 대만 성범죄 관련 판례 분석 ·····················································································392
가. 지방검찰서 성범죄 사건처리 ················································································392
나. 성자주권 방해 관련 검찰서류 분석 ·····································································394
다. 이상적 피해자(理想被害人) 관련 판례 ··································································397
제8절 양형기준 관련 비교법적 분석의 시사점 ·································································404
1. 비동의간음죄 관련 ···································································································404
2. 법정형 관련 ················································································································407
3. 범죄등급 구분 및 양형인자의 중요도 설정 관련 ·····················································409
4. 개별 양형인자의 의미·적용 관련 ··············································································411
5. 디지털성범죄의 경우 ··································································································412

제7장 | 연구결과 요약 및 정책제언 417

제1절 연구결과 요약 ··········································································································417
1. 설문조사 결과 요약 ···································································································417
가. 경찰 및 검찰의 성인지 감수성 수준 ···································································417
나. 이차 피해 수사행동을 예측하는 요인 ·································································419
2. 심층면담조사 결과 요약 ····························································································419
가. 법집행공무원 심층면담 ·························································································419
나. 피해자 지원기관 실무전문가 심층면담 ································································421
3. 젠더폭력 사건 판례분석 결과 요약 ··········································································423
가. 주요 사건의 전과정 추적 조사결과 ·····································································423
나. 성폭력 범죄 하급심 판결문 분석 ········································································427
4. 해외 입법례 분석 결과 요약 ·····················································································429
제2절 정책제언 ···················································································································432
1. 형사사법기관 법집행공무원 대상 교육 강화 ····························································432
가. 성인지 감수성 강화를 위한 소집단별 차별화된 교육 ······································432
나. 경찰 및 검찰의 이차 피해 수사행동 예방을 위한 특화된 교육 ························434
다. 법관대상의 성인지 감수성 교육 강화 ·································································435
라. 성인지 감수성의 정례적 실태조사와 교육효과의 상시적 측정 및 환류 ···········436
마. 형사사법 절차내 피고인 측 변호인의 성인지 감수성 수준 제고 ······················436
2. 성인지 감수성 실천을 위한 수사 및 재판관행 혁신 ···············································437
가. 성인지 관점의 사법문화 조성을 위한 지원 ························································437
나. 피해자 및 피해자 변호인 지위 강화 ···································································438
다. 국선변호인 제도 개선 및 무료법률지원 확대 ·····················································440
라. 정당한 편의제공 실현을 위한 규정 강화 ····························································441
마. 피해자 개인민감정보 보호를 위한 법집행 절차 개선 ········································442
바. 피해자와의 무리한 합의 규제 ··············································································443
3. 성폭력 범죄 양형기준 개선 ·······················································································443
가. 양형기준 제정절차 정비 ·······················································································443
나. 범죄등급 구분 및 양형인자의 중요도 설정 관련 ···············································444
다. 양형기준에 대한 해설·주석 제공 및 적용할 수 없는 양형인자 명시 ···············445
라. 처벌불원의 감경이유 구체화 ················································································445
마. 감경요소로서 상당한 보상에 대한 범죄유형별 분리 ··········································446
바. 디지털성범죄 양형기준 개선 ················································································447
사. 판사의 양형기준 준수 ··························································································448
아. 친밀한 관계에서의 폭력에 대한 양형기준 및 관련 인자 반영 ··························449
4. 강간죄 성립요건의 정비 ····························································································449