보고서 정보
주관연구기관 |
한국여성정책연구원 Korean Women’s Development Institute |
보고서유형 | 최종보고서 |
발행국가 | 대한민국 |
언어 |
한국어
|
발행년월 | 2014-12 |
과제시작연도 |
2014 |
주관부처 |
여성가족부 Ministry of Gender Equality & Family(MOGEF) |
등록번호 |
TRKO201500001115 |
과제고유번호 |
1105009041 |
사업명 |
한국여성정책연구원 |
DB 구축일자 |
2015-04-25
|
DOI |
https://doi.org/10.23000/TRKO201500001115 |
초록
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I. 서론
1. 연구 목적 및 필요성
본 연구는 출생등록의무자 및 스토킹 규제와 관련된 외국의 입법례를 비교·분석하여 우리나라의 입법과제를 도출하는 것에 그 목적을 둔다. 출생등록제도는 국가의 인구 동태를 파악하고 의료서비스 등 정책의 기본 자료가 되는 것으로서 국가마다 각기 제도를 가지고 운영해오고 있다. 그러나 출생의 등록은 무엇보다도 그 자체로 아동의 인권과 복리에 직접적으로 관련되어 있는 중요한 문제이다. 더 나아가, 출생등록의 문제는 출생을 둘러싼 가족 및 혼인제도 내외에서 여성의 출산이라는 문제와 연결되어, 여
I. 서론
1. 연구 목적 및 필요성
본 연구는 출생등록의무자 및 스토킹 규제와 관련된 외국의 입법례를 비교·분석하여 우리나라의 입법과제를 도출하는 것에 그 목적을 둔다. 출생등록제도는 국가의 인구 동태를 파악하고 의료서비스 등 정책의 기본 자료가 되는 것으로서 국가마다 각기 제도를 가지고 운영해오고 있다. 그러나 출생의 등록은 무엇보다도 그 자체로 아동의 인권과 복리에 직접적으로 관련되어 있는 중요한 문제이다. 더 나아가, 출생등록의 문제는 출생을 둘러싼 가족 및 혼인제도 내외에서 여성의 출산이라는 문제와 연결되어, 여러 가지 어려운 사회적 이슈와 과제를 우리에게 던져 주고 있다. 한편, 스토킹은 그 행위가 미치는 피해의 심각성이 알려지면서 비교적 근래에 주목된 현상이다. 고교시절부터 짝사랑한 교사를 수년간 스토킹하고 살해한 사건, 이웃집 여성을 스토킹 하여 살해한 사건 등이 보도되면서 스토킹이라는 범죄의 위험성에 대한 인식이 확산되고 있다. 이와 같은 상황에서 본 연구는 현행 출생신고체계의 개선을 위한 입법정책을 도출하기 위한 외국의 출생등록 관련 법제를 조사·분석하였다. 또한 스토킹 피해에 대한 처벌 수준과 피해자 보호조치 등이 매우 미약하여 이를 보완하기 위해 외국의 관련 입법례와 제기된 쟁점, 논의를 참조하여 스토킹 대응에 대한 쟁점을 검토하고 입법적 대응방안을 마련하였다.
Abstract
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Compared to other sectors, legislations on women and family-related issues have shown a quite faster development with various legislative measures achieved to enhance gender equality policies in Korea. Nevertheless, there is no significant change in the reality that women face every day. Moreover, t
Compared to other sectors, legislations on women and family-related issues have shown a quite faster development with various legislative measures achieved to enhance gender equality policies in Korea. Nevertheless, there is no significant change in the reality that women face every day. Moreover, the job insecurity and economic disparity of women are worsening and women live in a society where sexual violence and harassment are prevailing. Such disparity between the law and the reality, inversely, demonstrates why legislations and institutions are critical in improving the reality. Here comes the imperative to create appropriate structures enabling constant and systemic efforts to close the gap between the law and the reality. To this end, Korean Women’s Development Institute has promoted researches with the aim of strengthening the effectiveness of women and family-related legislations by providing gender-sensitive support to the legislative activities in the National Assembly including developing relevant new bills and amendments for the ten years since 2013.
With the aim of identifying legislative tasks in Korea by comparing and analyzing legislative examples of other countries, the study collected and examined diverse legislations and regulations on birth registration in other countries to improve the current system in Korea. Also acknowledging that the punishment level on stalking perpetrators and the protection for stalking victims are too weak in Korea, other countries’ legislative examples and relevant issues and discussions were reviewed to improve Korea’s responses and legal measures to stalking. Every country has a system of registering birth which is a basic document to figure out the population movements and establish and implement relevant medical polices. In principle, a baby’s father or mother undertakes the obligation to register the birth in Korea. As a result, various child rights violations including the omission of registration, false registration, illegal or unlawful adoption, baby abandonment and trafficking become serious social problems, requiring the immediate improvement in birth registration system. The studycategorized other countries’ legislative examples on who is responsible for birth registration into four types: first, a birth is notified to relevant authorities by medical institutions; second, both parents and medical institutions have the obligation to report a birth; third, a birth can be registered at medical institutions; and fourth, parents have a primary obligation to register birth. After comparing and analyzing each type’s legal texts and characteristics, the study developed improvement plans of Korean system.
Most countries reviewed, except China and Japan which have a similar system with Korea, have medical institutions primarily register birth. In other words, by imposing the first notification obligation to a medical institution where a baby is born, a birth is informed to relevant state authorities by medical institutions prior to the baby’s parents’ registration. Many countries including Australia, New Zealand, England, America and Canada adopted the system. These countries make hospitals or medical professions engaged in childbirth first inform the fact of birth to the government even when the ultimate responsibility to register birth lies upon the baby’s parents. Such legislative examples are meaningful to Korea in guaranteeing the prompt registration of birth, relieving parents’ burdens of visiting public office to register right after childbirth, providing parents with relatively plenty of time to register after first report by medical institutions, and reducing the possibility of non-registration, omission or false report. Another type is that the law on birth registration prescribes parents are responsible for registering birth in principle, but in practice, birth can be immediately registered at the hospital where a baby is born. France has public servants permanently residing in public hospitals for birth registration while Singapore has a birth registration center in every hospital so that birth registration can be completed by computer network system immediately after childbirth. While the legal system regarding birth registration in these countries seem very similar with that of Korea, it should be noted that in practice, the quick and accurate registration along with easier registration procedure is promoted by allowing birth registration at the hospital where a baby is born through administrative services. It has great implications that among many countries reviewed, only China and Japan place responsibility of registering birth merely on the baby’s parents not medical institutions like Korea. China and Japan maintain the legal system based on ‘patriarchal family registration’ system. Unlike the two countries, Korea overcame pre-modern relics in identity registry and introduced a new system under the Act on the Registration, etc. of Family Relationship. However, unfortunately, it seems that a birth registration system fails to break from the outdated registration frame of the former patriarchal family registration system. In this regard, a new system that medical institutions that engaged in childbirth promptly report the birth to relevant governmental agencies prior to final registration by parents should be introduced to improve remaining problems in birth registration system under the Act on the Registration, etc. of Family Relationship.
Meanwhile, stalking, a crime committed under the name of love becomes a serious social problem. It is a serious criminal act threatening even the life of victims. Legislations responding stalking crime are one of the fastest developing legal sectors in the world. Korea laid the ground for prosecuting stalking by completely revising the Punishment of Minor Offense Act to include related provisions in Article 3 (1) 41 of the Act under the title of “consistent harassment.” It established a legal basis upon which to punish stalking, even if it is a minimum level. However, the provisions have limitations of extremely weak punishment and lack of response measures except punishment for offenders. Therefore, by reviewing each country’s stalking prevention legislations, we could develop some ideas on which directions the relevant institutions should aim in light of international standards beyond whether penalties on stalking need to be introduced or not. A few common points were found in legal definitions on stalking in reviewed countries. First, in most countries, except Belgium, laws and regulations require ‘a series of acts’ or ‘repetitive acts’ to establish the legal definition of stalking. Second, all of the legal definitions adopt open concepts such as harassment or pursuit. In addition, legislations of each country are varied by the status of the provision. Most of countries criminalized stalking by newly introducing the provision on stalking in the existing criminal codes. On the other hand, England, Ireland, and Japan enacted a separate law to regulate stalking instead of integrating relevant provisions in the criminal codes. Moreover, each country’s legislations are different in the degree of intention of offender for establishment of the crime, that is whether it requires the specific intent or the mere acknowledgement of the act willful negligence is enough and whether negligence criminal should be punished or not. Whether the victim’s complaint is required to prosecute the offender is also different in countries. Belgium, Luxembourg, Hungary, Poland, and Netherlands prescribe the crime as an offense subject to complaint. In Germany where stalking is in principle subject to complaint, it has the nature of relatives Antragsdelikt that a prosecutor can indict the offender of the crime, regardless of the victim’s complaint when there is believed a special public interest. On the other hand, in Austria and England, all stalking crimes are offense indictable without complaint and even despite the victim’s intention for non-punishment. Maximum penalties range from three months to more than ten years. In large, it can be divided into applying the same penalty to every kind of stalking offenses and applying different standards by basic requirements and aggravating circumstances.
In conclusion, legislative examples in other countries reviewed show the following observations: First, regarding the definition of stalking act, most of legislations require ‘a series of act’ or ‘repetitive acts’ as a legal concept determinant.; Second, while criminalization of stalking was implemented in general by integrating relevant provisions in the criminal codes, a few examples of enacting a separate law can be found.; Third, whether certain injuries suffered by victims such as a fear or emotional pain are required to punish stalking is varied by country.; Fourth, countries take different approaches in requesting the victim’s complaint or not.; and Fifth, irrespective of differences in legislations, preventive measures and safeguards for victims become the most important task.
Based on these trends in each country’s legislation, the study suggests a bill on the special act on stalking with the aim of presenting a comprehensive regulatory frame, taking account of its compatibility with the existing legal system of Korea. The bill “Special Act on the Punishment, etc. of Stalking Crimes” is composed of the following structures: ‘Chapter 1 General Provisions’ on the purpose of the Act, definitions and types of ‘stalking’ Special Cases; ‘Chapter 2 Special Cases Concerning the Punishment of Stalking Crimes’ adopting the integrated structure of criminal sanction; ‘Chapter 3 Special Cases Concerning the Procedures Therefor’ prescribing measures taken against stalking offenses by judicial police officer and protective measures for victims; and ‘Chapter 4 Protective Order for Victims’ specially designed to enhance the protection of victims and ‘Chapter 5 Penal Provisions’.
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