판례를 통해서 본 부부강간죄의 성립과 그 변화에 관한 소고-대법원 2013. 5. 16. 선고 2012도14788 전원합의체 판결을 중심으로-

Abstract

In the Supreme Court of Korea, the past position of the case of rape is not established in marital relationship. But it can be established even in marital relationship, if the marital relationship is practically broken. The reasons which jurisprudence and theories take these conclusions are that marital rape is the thing in home and punishment is no effect in solving this problem. But coerced intercourse with serious violence by husband must be punished. Serious battery and threat could not provide any exemption even if the intercourse is done between husband and wife. If nation does not intervene these serious criminal conducts, men rape his wife easy and easy. Since 2000, as the discussion on marital rape began, there were some rulings at lower instance that even in normal marital relationship, an individual has no right to rape the marital with violence or threat, so an indecent assault or rape case is established. In recent times some local jurisprudence starts to consider rape could be admitted between husband and wife. If husband has sexual relation with violence and threat, they are not married couple in material means. And some judges think it could be easier for husband to rape his wife. Because husband can violent and threat his wife easier in secretly. However, there was no ruling of the Supreme Court of Korea since the defendant committed suicide or abjured appeal. However, in recent, since the judgment of conviction against the case of forceful sexual intercourse by the threat of lethal weapon in normal marital relationship, the defendant appealed to the supreme court, which had to make a judgment. The Court sent this case to the unanimous judgment. Finally, The Court ruled historic decision that changes the past position of precedents on May 16, 2013.