2012년 성폭력법제의 개정에 대한 비판적 검토- 형법상 강간죄를 중심으로 -

Abstract

There were revisions to the penal code, the basic law for sexual assaults on December 18, 2012. The revisions reflected the improvement measures for the punishment provisions of sexual assaults strongly insisted by the academia and women's groups. The major changes include the followings: first, the object of rape has been redefined as "person" instead of "woman"; second, the crime of quasi-rape has been newly added to reinforce punishment for a forced act of intercourse; and finally, the provision for a crime requiring complaint from the victim for prosecutor has been abolished for sexual assaults including rape. The revisions represent a reflection upon the past when sexual assaults that caused a social issue were dealt with through the enactment and revision of temporary special acts for every occurrence of such crimes. They deserve very positive evaluation in that they revised the fundamental aspects of sexual assaults. At the same time, however, they do have the following problems, for which the present study proposed improvement measures:First, although the object of rape was redefined as "person" instead of "woman," the conduct is still defined as "rape," which means a rape crime cannot be applied to homosexual rape. The study thus introduced examples of legislation to revise the conduct of rape. Second, it is admirable that punishment for a forced act of intercourse has been reinforced by newly adding quasi-rape, but the constituent conditions are not clear. The study thus proposed improvement measures for it. Finally, it is positive that the provision stipulating a crime requiring complaint from the victim for prosecutor has been abolished for rape. However, there is some concern about the excessive execution of punishment right by abolishing the provision for all sexual assaults. It is also required to come up with improvement measures for potential problems that can take place by abolishing the provision.