성폭력범죄의 행위유형에 대한 비판적 형법도그마틱

Abstract

Criminal law regulates sexual assault by two representative type of crime, which are 'rape' and 'sexual abuse'. Excluding violence and threatening, the type of act that is common in both kind of sexual assault, rape is considered as an adultery and the latter goes under abuse. In this case, adultery is understood as sexual intercourse between male and female. Therefore, if there were no genital interaction, then it must be subsumed as an sexual abuse and it is penalized at a substantially lower sentence. However, it is questionable whether such reaction of present criminal law appropriate to recent conditions of sexual assault. When the Phenomenon of today's sexual assault is looked at, it can be seen that sexual assault is frequently occurred as anal intercourse and oral intercourse etc. especially on vulnerable victims such as Children and adolescents. This is a completely different scenario than past phenomenons of sexual assault. Therefore, this essay has focused anal intercourse or oral intercourse and have examined following points in order to provide assessment of criminal law. First, the problems of attitude of present criminal law has been looked at. Secondly, issues associated with attempts to include anal intercourse or oral intercourse into criminal law has been scrutinized. Lastly, it has been studied whether it is reasonable to constitutionalize anal intercourse or oral intercourse into system of sexual assault while considering how to classify anal intercourse or oral intercourse into criminal law in order to be realistic and to effectively protect the right of sexual self-determination. These following statements are the concluded solutions. It is necessary to assort type of sexual assault into three categories in order to pursue accuracy and legal stability by maintaining traditional definition of adultery as well as to take violent anal intercourse or oral intercourse into greater consideration than sexual abuse. Secondly, rape should be restricted to adultery caused by violence or threat, akin to present rape. Furthermore, psudo sexual intercourse is to be broken down into two categories of anal intercourse or oral intercourse and the others in order to keep Schuldprinzip bzw. Bestimmtheitgrudsatz. Thirdly, sexual abuse should allow all the other type of acts that do not go under rape or any of the two psudo sexual intercourse categories.