주거침입 성폭력범죄에 관한 소고 -성폭력범죄의 실행의 착수시기를 중심으로

Abstract

The current Korean criminal law stipulates that if a person commits a home invasion crime, he or she will be punished by “imprisonment for not more than 3 years or a fine of not more than 5 million won,” and if he or she commits the crime of rape, which is the most serious offense among sexual violence crimes, he or she will be punished by “imprisonment for a limited period of 3 years or more.” Meanwhile, it is stipulated that if a person who invaded another person’s dwelling committed a sexual assault crime (hereinafter referred to “home invasion sexual violence crime”), he or she will be punished by “life imprisonment or imprisonment for 7 years or more.” In other words, if a person commits a home invasion sexual violence crime, he or she will be punished much more severely than if one who committed a home invasion crime and a sexual assault crime on separate occasions. Regarding the chronological relationship between a home invasion and a sexual violence offense in a home invasion sexual violence crime, the home invasion should be committed and completed prior to the commencement of the sexual violence crime. If the commencement of the sexual violence crime preceded the home invasion, the home invasion sexual violence crime cannot be established, and in that case, sexual violence crimes and home invasion crimes will be in a relationship where different criminal acts constitute multiple criminal offenses. Hence, it is crucial to examine the timing of the commencement of sexual violence conduct. The types of sexual violence crimes are divided into ① indecent assault, ② rape, imitative rape [the term “imitative rape” refers to the rape by means of violence or intimidation, insertion of one’s sexual organ into another’s bodily part (excluding a genital organ), such as mouth or anus, or insertion of one’s finger or other bodily part (excluding a genital organ) or any instrument into another’s genital organ or anus], and ③ quasi-rape, quasi-imitative rape, and quasi-indecent assault (the term “quasi” indicates the act in question was carried out by taking advantage of another’s condition of unconsciousness or inability to resist. This article will review the timing of the commencement of each type of the above acts. Special cases involving sudden indecent assault and sudden imitative rape will also be explored. Subsequently, specific cases that raise questions about the chronological relationship between home invasion crimes and sexual violence crimes are considered. The legislative approach in current Korean criminal law that requires a chronological relationship between home invasion crimes and sexual violence crimes is reviewed along with the revision of Japanese criminal law related to the crime of robbery and rape. Finally, the analysis delves into whether home invasion sexual violence crimes can be established in cases where: (a) the intent of sexual violence emerged only after the home invasion; (b) the victims of home invasion and sexual violence are different; and (c) the commission of a sexual violence crime came after a considerable amount of time has passed since the home invasion took place.