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▶ 이 책은 한국형사정책연구원의 피해자 보호를 위한 경찰개입의 한계요인과 법제도적 개선방안에 관한 연구를 다룬 정부간행물입니다.

국문요약 ··············································································1
?제1장? 서 론 ? 전현욱·김학경 ···············································9
제1절 연구의 배경과 목적 ··········································································11
1. 국가권력에 의한 적극적인 피해자 보호와 법치국가 원칙 ·······················11
2. 가정폭력과 아동학대 관련법상 경찰의 역할과 연구의 범위 ····················15
제2절 연구의 방법 및 보고서의 구성 ························································18
1. 문헌연구 ? 문제 요인 도출 ·········································································19
2. 비교법 연구 ? 개선의 방향 확인 ································································19
3. 설문조사 및 FGI ? 문제 및 개선에 대한 경험적 검증 ····························20

?제2장? 가정폭력·아동학대 사안에 대한 경찰 개입근거
및 내용 ? 전현욱·김학경·김 혁 ·································23
제1절 가정폭력·아동학대와 경찰의 역할 ····················································25
1. 가정폭력과 경찰 ···························································································25
가. 가정폭력처벌법 및 가정폭력방지법상 경찰의 위치와 역할 ·······················25
나. 가정폭력의 처리현황 ·····················································································26
2. 아동학대와 경찰 ···························································································27
가. 아동복지법 및 아동학대처벌법상의 경찰의 위치와 역할 ···························27
나. 아동학대의 처리현황 ·····················································································28
제2절 경찰개입의 내용 및 한계 ·································································30
1. 현장출입(주체: 사법경찰관리, 아동보호전문기관의 직원) ························30
가. 경찰법적(행정경찰작용) 관점 ········································································30
나. 위험방지를 위한 출입과 영장주의 ·······························································33
다. 사법경찰작용적 해석이 우선되는 경향 ························································35
라. 형사법적(사법경찰작용) 관점 ········································································37

ii 피해자 보호를 위한 경찰개입의 한계요인과 법제도적 개선방안에 관한 연구
2. 응급조치 ? 행정경찰작용(주체: 사법경찰관리 또는 아동보호전문기관의
직원) ··············································································································39
3. 긴급임시조치 ? 행정경찰작용(주체: 사법경찰관) ······································44
4. 임시조치의 신청 ? 사법경찰작용(주체: 사법경찰관, 보호관찰관) ···········49
5. 보호처분 및 피해자 보호명령 ·····································································54
6. 사후조치 ········································································································55
제3절 소결 ? 요약 및 분석 ········································································57
1. 가정폭력 및 아동학대에 대한 경찰대응 법제 요약 ··································57
가. 가정폭력 및 아동학대에 대한 현행법상의 경찰대응 절차 ·························57
나. 가해자에 대한 형벌과 보안처분(보호처분) ? 사법경찰작용의 근거 ··········61
2. 현행 법제상 현장개입 및 초기대응 저해요인 분석 ··································62
가. 행정경찰작용과 사법경찰작용의 구별 ··························································62
나. 현행법상 경찰대응의 법적 성격 ···································································64
다. 가정 내 진입 여부에 대한 판단 문제 ··························································65
라. 이행 강제수단의 한계 ····················································································67

?제3장? 비교법적 고찰 ? 전현욱·김학경·박병욱·김 혁·유주성 ····69
제1절 영국 ··································································································72
1. 1984년 경찰 및 형사증거법의 역사적 의의 ·············································72
2. 가정폭력 및 아동학대에 대한 영국 경찰의 대응권한 ·······························74
가. 적극적 작위의무(Duty of Positive Action) ··············································75
나. 영장 없는 강제출입 ·······················································································75
다. 보호명령통지 ··································································································80
라. 보호명령 ··········································································································86
3. 비교분석 ········································································································90
가. 우리 법제의 특징 ? 조치의 다양성 그러나 실효성 부족 ···························90
나. 영국 법제의 특징 ? 조치의 상대적 단순함 & 실효성 확보 ······················93
4. 소결 ···············································································································96
제2절 독일 ··································································································97
1. 가정폭력, 아동학대 관련 독일경찰의 대응권한 특징 ·······························97
2. 독일 경찰의 가정폭력, 아동학대 대응권한 ················································99
가. 영장 없는 강제출입 ·······················································································99
나. 경찰에 의한 (긴급)임시조치 ········································································103
다. 제지를 위한 보호조치(Gewahrsam) ·························································109
라. 형사소송법상의 퇴거명령 및 체포 ·····························································112
3. 민사법원(구법원)에 의한 피해자 보호명령 ··············································114
4. 비교분석 및 제언 ·······················································································116
가. 긴급출입(강제출입) 비교 ·············································································116
나. 응급조치, (긴급)임시조치 비교 ···································································118
다. 제 언 ·············································································································124
제3절 프랑스 ····························································································130
1. 가정 내 배우자 및 아동폭력 실태 ···························································130
가. 배우자 폭력 ··································································································130
나. 아동 폭력 ·····································································································130
2. 가정 내 배우자 및 아동폭행에 관한 대응법제 특징 ······························131
가. 특별법이 아닌 일반법(형사소송법)으로 해결 ············································131
나. 사법경찰관에 대한 실질적 권한 부여 ························································132
다. 형사소송법 원칙으로서 ‘피해자보호’ ·························································136
3. 가정 내 배우자 및 아동폭력 발생에 대한 경찰의 단계별 대응 ············137
가. 신고 ···············································································································137
나. 현장출입?조사 ·······························································································137
다. 응급조치 ·······································································································138
라. 긴급임시조치 ································································································138
마. 임시조치 ·······································································································139
4. 우리 법제와의 비교 ···················································································142
제4절 일본 ································································································146
1. 개관 ·············································································································146
2. 배우자폭력 사안에서의 대응체계 ······························································147
가. 배우자폭력상담지원센터와 보호명령 ··························································147
나. 경찰의 역할 및 대응 ···················································································149
3. 아동학대 사안에서의 대응체계 ·································································154
가. 아동상담소 등의 역할 ·················································································154

iv 피해자 보호를 위한 경찰개입의 한계요인과 법제도적 개선방안에 관한 연구
나. 경찰의 역할 및 대응 ···················································································157
4. 소결 ·············································································································160
제5절 미국 ································································································162
1. 가정폭력에 대한 경찰개입의 역사: 불개입에서 적극적 개입으로 ·········162
가. 가정폭력의 범죄화 ·······················································································162
나. 가정폭력에 대한 불개입에서 적극적 개입으로의 선회 ····························163
2. 미국에서 가정폭력에 대한 경찰개입 개관 ···············································166
가. 가정폭력 현장에서 경찰관의 권한 및 의무 ···············································166
나. 영장 없는 가해자 체포의 허용 ···································································169
다. 보호명령 신청에 대한 조력 및 보호명령의 집행 ·····································171
3. 가정폭력 가해자에 대한 의무적 체포 정책 ·············································173
가. 의무적 체포 정책의 도입 배경 ···································································173
나. 의무적 체포 정책에 대한 찬반논쟁 ···························································174
4. 가정폭력에 대한 구체적인 경찰개입 수단 ···············································178
가. Wisconsin주 ·······························································································179
나. California주 ································································································183
제6절 소결 ································································································189

?제4장? 설문조사 및 FGI ? 정철우·김학경·김 혁 ················197
제1절 설문조사 ·························································································199
1. 자료의 수집 ································································································199
2. 분석방법 ······································································································200
3. 분석결과 ······································································································202
가. 전문가 집단 ··································································································202
나. 시민 인식 분석결과 ·····················································································207
다. 경찰관 인식 분석결과 ·················································································215
제2절 FGI ·································································································222
1. 인터뷰 방법론 ·····························································································222
2. 인터뷰 내용 ································································································224
가. 출입조사와 실무운영 ···················································································224
나. 응급조치와 실무운영 ···················································································227
다. 긴급임시조치와 실무운영 ············································································229
라. 임시조치에서의 실무상 문제점 ···································································231
제3절 소결 ································································································234
1. 설문조사 결과 ·····························································································235
2. FGI 결과 ·····································································································238

?제5장? 경찰의 현장집행력 제고방안? 전현욱·박병욱·김소연 ··241
제1절 경찰개입의 신속성 확보를 위한 법이론적 검토 ·····························243
1. 공사(公私)의 상대화와 국가권력의 작용범위 확대 ··································243
가. 국가 사회 이원론 ·························································································243
나. 사적 영역에 대한 국가권력의 개입 확대 ··················································244
2. 영장주의와 경찰의 가정 내 개입 ·····························································245
가. 헌법상 영장주의 ···························································································245
나. 경찰의 영장 없는 주거 내 진입 필요성 ····················································247
다. 영장주의의 예외 인정 문제 ········································································248
3. 가정 내 폭력에 대한 긴급 주거 진입의 비례성 ·····································250
가. 가정 내 폭력의 특수성 ···············································································250
나. 생명·신체의 위해방지를 위한 국가개입과 비례성 ····································251
다. 재산상 손해 방지를 위한 국가개입과 비례성 ···········································253
라. 법치국가적 통제 ···························································································253
4. 입법론적 검토 ·····························································································255
가. 행정경찰작용으로서 경찰의 가정 내 개입 ················································255
나. 즉시강제에 대한 사법적 통제와 권리구제 ················································259
다. 영장주의 예외의 범위와 한계 ·····································································260
제2절 현행 법제 개선방안 ········································································263
1. 초기 개입주체로서 경찰의 역할 명확화 ··················································263
2. 아동학대처벌법과 가정폭력처벌법의 체계정합성 확보 ···························268
3. 경찰의 현장출입제도 개선 ········································································270
vi 피해자 보호를 위한 경찰개입의 한계요인과 법제도적 개선방안에 관한 연구
4. 긴급임시조치의 실효성 확보 ·····································································273
5. 긴급임시조치와 임시조치의 절차개선 ······················································275
6. 경찰권한에 대한 법치국가적 통제 ····························································276

?제6장? 정책제언 ? 전현욱 ···············································279
참고문헌 ···········································································285
Abstract ··········································································295
부록 ··················································································307
[부록1] 경찰의 가정 내 개입 관련 Massachusetts주 법률 ··················307
[부록2] 가정폭력에 대응하는 사법집행관을 위한 Massachusetts주
가이드라인 ···················································································311
[부록3] 설문지 ··························································································366