현대 간통죄 판례와 결혼관계 내 여성의 지위 변화 분석

Abstract

The 1953 Criminal Code in South Korea stipulating adultery as a crime was ruled unconstitutional by the Constitutional Court in 2015. Studies on adultery by criminal law specialists approach the issue from the perspective of ‘freedom of sex’ or ‘personal privacy.’ However, this paper approaches the Constitutional Court rulings on adultery from the position of Korean women in marriage. This paper seeks to connect the women’s movement to reform Family Law and their demand for maintaining adultery as a crime. The background to the introduction of adultery into the 1953 Criminal Code and its ultimate unconstitutional ruling are examined through five constitutional appeals since the first in 1990, followed by additional appeals in 1993, 2001, 2008, and 2015. The fifth appeal finally determined criminal adultery to be ‘unconstitutional’ whereas all four previous decisions ruled it to be ‘constitutional’. This paper analyzes the contexts that led to the change of decision from constitutional to unconstitutional in connection with the Family Law reform debates and the change in the status of women in marriage. By analyzing court documents, this paper concludes that the main reason for the women’s groups seeking to maintain adultery as a crime was due to the inequalities women faced in divorce in contemporary South Korean society, such as claims in the division of property. In short, this paper illuminates the connection between the change of Korean women’s attitudes toward divorce and the division of family property and the context of the constitutional court rulings on adultery.