스토킹처벌법상 피해자 보호조치의 한계와 제도적 개편 — 접근금지 등 명령에 대한 비교법적 연구를 중심으로 —

초록

It has been approximately four years since the enactment and enforcement of the 2021 Anti-Stalking Act, and the time has come to move beyond the initial stage of introduction and settlement into a next stage of institutional development. The restraining order against stalkers is the first line of defense to prevent recidivism and constitutes a core mechanism in responding to stalking. Since stalking is characterized by repetition, persistence, diversity, and irregularity, victim protection measures must be developed to function continuously and flexibly in order to ensure the effectiveness of the anti-stalking regime. A review of legislative precedents in the United States(California), the United Kingdom, Germany, and Japan - jurisdictions that have criminalized stalking and advanced their legal frameworks earlier than Korea - reveals that their victim protection measures contain no structural gaps. Courts are granted broad discretion to prohibit or mandate measures necessary for victim safety for as long as needed, thereby securing effectiveness. In contrast, Korea’s Anti-Stalking Act leaves an institutional vacuum in the protection of victims once criminal proceedings have concluded, as the legal system provides no civil procedure to complement or extend such protection measures. The duration of measures is excessively short, with a maximum of only nine months, after which protection cannot be maintained, and the substantive scope of protection measures is also limited to physical and electronic access restrictions, undermining their effectiveness. Moreover, the relatively lenient criminal penalties imposed for violations of protection orders are insufficient to secure the effective enforcement of those measures. This paper therefore proposes specific measures to overcome the limitations of the current framework concerning the system, duration, content, and sanctions of victim protection measures under the Anti-Stalking Act. First, criminal restraining orders at the stage of criminal judgment and civil victim protection orders should be introduced in order to fill the gaps in the protection system. Second, the paradigm regarding the duration of victim protection measures should be shifted so that, in principle, they remain effective throughout the criminal proceedings until the victim’s safety is assured. Third, victim protection measures should explicitly prohibit the repetition of all stalking-type conducts, and interim measures should include a comprehensive provision empowering courts to impose any action necessary to prevent recurrence. Fourth, in order to ensure deterrent effect, aggravated penalties should be introduced for stalking committed in violation of victim protection measures. These four proposals, already adopted and practiced in most advanced jurisdictions, are consistent with the Korean legal system and should be promptly implemented to enhance the effectiveness of victim protection measures against stalking.

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