기망이나 착오 등에 의한 피해자의 승낙의 법적 효과에 관한 고찰

Abstract

Penal Code Article 24 defines consent of victim as follows "An act which infringes a legal interest with the consent of one who is authorized to dispose of such interest shall not be punishable except as otherwise provide by law." Therefore, It is regarded as one of justification defences. Whenever consent of victim maybe a defence, it must be established that: (i) the legal interest was disposed by the party who has authorization of consent (ii) the consent was freely given by the party who was legally capable of consenting, (iii) the consent existed, at least, at the time of acting, (iv) the party acknowledge the consent (v) the act based on the consent is applicable to social rules. Therefore, If the consent of victim has occurred by fraud, misunderstanding, duress, etc.. The effectiveness of consent of victim is in doubt because the consent it is not freely given and voluntarily. Hence, In this paper, I studied and reviewed, in the case of the consent of victim by fraud, misunderstanding, what contents of fraud or misunderstanding negate the consent of victim based on the discussion and debate in the foreign nations.