개정형법상 성적자기결정권의 의미와 보호의 실제

초록

In December 2012, the Criminal Law was revised with regard to sexual violence crime. The motive for such revision is that the former Criminal Law could not effectively respond to sexual crimes that have been brutalized and diversified. The main points of revisions are found as follows; (ⅰ) object of sexual crime is expanded from women to a person, (ⅱ) similar rape is newly enacted, (ⅲ) Adultery under promise of marriage was deleted, (ⅳ) The offense subject to prosecution on complaint was abolished. Due to revision of Criminal Law there was fundamental change in the traditional scope of protection on sexual self-determination as well. Accordingly, there arose a need to verify the meaning and contents of the sexual self-determination as the benefit and protection of the law. The purpose of this study is to review the meaning of right to self-determination against rape, forced molestation and similar rape, which are the legal interest protecting sexual self-determination, among sexual violence crimes, and to check how protection of sexual self-determination has changed in comparison with the former Act. Firstly, similar rape adopted at this revision is meaningful in that behaviors of quasi sexual intercourse are defined as separate crime. However, as behaviors of quasi sexual intercourse have been a type of molestation, this revision can hardly be regarded as the expanded protection on sexual self-determination. Meanwhile, expanded scope for object of sexual crime can be highly evaluated in the progressive attitude to accept the violence to the male by female and putting an end to the dispute on rape crime on transsexuals. More than anything else, abolition of offense subject to prosecution on complaint may be regarded as the core measure to expand scope of protection in that the status of sovereign power is solidified as guardian for protecting the sexual self-determination. Seen from the Court’s positive viewpoints on recent revision of Criminal Law or marital rape, the protection on sexual self-determination from Criminal Law’s viewpoints will advance to the direction to realize the ultimate value of sexual equality encompassing equality between two sexes and further to sexual minorities as well. However, the direction shall not be such one that would damage the fundamental value of freedom, as the sexual self-determination comprises the freedom of sexual decision making and sexual behaviors.

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