아내강간죄를 인정한 대법원판결에 대한 소고– 대법원 2013. 5. 16. 선고 2012도14788 전원합의체 판결 -

Abstract

It seems that the judgement, which concluded so-called the "wife rape" case as a sexual assault, has put an end to the controversy that had been rampant for quite a while. However, to be exact, it might be the reformed Korean Rape Law(2012.12.) that ended the controversy related to wife rape, not the judgement. And we can even find out the majority opinion of the judgement conversely has caused several problems on criminal law theories. They didn't make clear many logical problems raised by opposing opinion but fled to a jump of logic. The transgender case was not appropriate in this case, which they chose to strengthen their argumentation because the two cases are not the same structures. In addition, they criticized the opposing side not fully understanding its view, not to mention the argumentation got out of our subject(Can we recognize wife rape as a criminal assault based on the former Criminal Law §297). The majority opinion concentrated most of their energy to prove wife rape as a criminal act and that it deserves punishment, but no one on opposing side disagrees with it. They should have explained whether this act can be punished by Criminal Law §297 or not. In brief, opposing view does not deny the necessity of punishment but does deny the interpretation of wife rape by Criminal Law §297, which sees the act as a criminal assault. However, they argued that the word 'Bu-nyoe; a woman', the object of §297, can also include 'a wife in actual marital relationship', which I think is illogical. The interpretation by the majority may correspond with 'possible meaning of the legal term' but there are not much of their efforts of gaining systematic-teleological interpretation to draw out the optimal interpretation on this matter. They saw and tried to make something meaningful out of the word 'Bu-nyoe' only, overlooking the word 'Kang-gan', the act of §297. Therefore, they intimidated the guarantee task(or function) of Criminal Law, highlighting Rechtsgut of sexual self-determination too much. They, so obsessed with this individual case, fit the law into the case by force. They got confused between the interpretation of the law and de lege ferenda. In this process, the former Judgement has been banished too easily. It is such a shame. In §297, the former Judgement said that a wife in the actual marital relationship must be excluded from Bu-nyoe and, sought insight to balancing and protecting two Rechtsgut, right to sexual self-determination and family maintenance. But this wisdom has died. What is more pitiful is the Supreme Court changed the former judgement creating a lot of problems. If the former judgement wasn't ever repealed, the defendant was to be punished inevitably, and wife rape problem would have been solved by the reformed Law which was about to take effect in a month. In a nut shell, replacing the interpretation with de lege ferenda, Supreme Court has left lex stricta and lex praevia violence controversy. Now, with the enforcement of the reformed Korean Rape Law, there will be no more controversy about wife rape. Though, the wrong interpretation attitude of the Supreme Court that I pinpointed above must not be repeated again.