죄형법정주의 원칙의 관점에서 바라본 강제추행죄에서의 “폭행 또는 협박으로”

Abstract

In the recent 「Supreme Court en banc Decision 2018 Do13877 Decided September 21, 2023」, the Supreme Court divided indecent act by compulsion into violence or intimidation preceding type indecent act by compulsion and sudden indicency type indecent act by compulsion and judged that violence or intimidation in the latter means unlawful exerting physical force on the other person’s body or warning the other person of harm to the point of instilling fear in that person. Sudden indecency type Indecent act by compulsion becomes an act that can be punished as the crime of indecent act by compulsion when the legal words of ‘through violence or intimidation’ in the crime can be interpreted as ‘by method of violence or intimidation’. However, indecent act cannot be carried out ‘by method of intimidation’. So ‘through violence or intimidation’ cannot be interpreted as ‘by method of violence or intimidation’. In addition, legislator distinguishes between the words ‘violence or intimidation’, ‘threat of force’, and ‘indecent act’. It is consistent with the principle of nullum crimen, nulla poena sine lege that it is interpreted that sudden indecency type indecent act by compulsion, which makes a nonsense of the legal words of ‘through violence or intimidation’, cannot be punished unless there is a separate legislation. According to the logical and systematic interpretation of the constituent requirements of the crime of indecent act by compulsion and the crime of quasi-Indecent act by compulsion, ‘through violence or intimidation’ and ‘by taking advantage of the other's condition of unconsciousness or inability to resist’ should be evaluated as equivalent. Therefore, ‘violence or intimidation’ in the crime of indecent act by compulsion should be at least enough to make it difficult for the victim to resist. It should be interpreted in this way to distinguish crimes such as indecent act by compulsion and indecent act by the threat of force, indecent act on minor, et cetera, and the constituent requirements of the crimes such as indecent act by the threat of force, indecent act on minor, et cetera can perform their original functions. It should be noted that ‘indecent act’ itself is also an unlawful exerting physical force on the other person’s body. According to the current Supreme Court's point of view, which acknowledges the legal principle of sudden indecency and does not consider the degree of violence and intimidation in the crime of indecent act by compulsion, the matters to be regulated by the crimes of indecent act by the threat of force, indecent act on minor, et cetera enter the regulation area of the crime of indecent act by compulsion. This strengthens the punishment. In the current criminal law's regulatory system, ‘violence or intimidation’ in the crime of indecent act by compulsion must be interpreted as what is at least enough to make it difficult for the victim to resist. It enables a harmonious interpretation of the crimes of indecent act by compulsion, indecent act by the threat of force, indecent act on minor, etc., and conforms to the principle of nullum crimen, nulla poena sine lege. It is necessary for the Supreme Court to change its perspective.