법여성주의 이론의 흐름과 형사법에의 투영－성매매특별법을 중심으로－

Abstract

Prostitution and its regulation has been one of the most contentious issues for feminists since the beginning of feminist movement, in 18th century. Feminism, including feminist legal theory has altered and varied under the influence of politics, culture and philosophy of those days. The variety of feminism: moral, liberal, marxist, radical, socialist and postmodern feminism, show a diversity of opinion on prostitution and its regulation. Among them Radical feminism, which denounces prostitution as an institution of male oppression of women, has influenced recent prostitution legislation of Korea. And moral feminism, which assists the abolition of prostitution because of its ‘unmorality’, is supposed to be reflected in prostitution legislation, given the extraordinary nature of the historic and cultural circumstances in Korea, where premodernism, modernism and postmodernism coexist esp. in legal policy. Consequently, the current Prostitution Act criminalizes both the buying of sex and the selling of sex, but decriminalizes the selling of sex under duress. Such a strategy of prohibition, which focused on the idea of ‘forced prostitution’ and ignored different perspectives, could actually cause a harm on women. It could push prostitution into the shadows and make life worse for the women. Then prostitutes could suffer more perversity and violence on a daily basis. Furthermore, it ignored varied ‘causes’ of prostitution and varied ‘voices’ of prostitutes. Not every prostitute is poor, victimized and forced. To attain the truth of prostitution(exploitation or work?, prohibition or legalization?), we should hear, above all, the voices of prostitutes hitherto neglected and muted.