위력간음죄에 대한 법후견주의 관점의 접근

Abstract

With the Metoo movement in 2018 as the triggering point, social conception on sexual violence crime is drastically changing. At the core is the gender sensitivity that has been introduced to break through the male focused social values that is inverted to dichotomous sexual roles. Gender sensitivity is understood as the understanding and knowledge on the unbalance between sexes, the sensitivity to sense the sexual discrimination elements within daily life. The Supreme Court ordered to judges in hearing sexual harassment or sexual violence cases, not to reject the evidencing power of victim’s statement thoughtlessly considering the victim’s special situation, based on gender sensitivity. The gender sensitivity is injecting innovative impetus into not only evidencing standard at criminal practice but also into interpretation theory upon the Criminal Law. The concentration on interpretation theory and legislation theory upon Sexual Intercourse by threat of Authority as the representative composition element of power-related sexual crime can be regarded as one of such trends. By the way currently in the academic society, no study tried to confirm the true substance of gender sensitivity that penetrates the criminal theories and practices. The purpose of this thesis is to review the definition and the areas of contribution to interpret ion theories on the Criminal Law of so-called gender sensitivity and suitability as decision standard for courts etc, and to review the whole picture of the interpretation theory for Sexual Intercourse by threat of Authority which is currently at the center of thedebates as the representative power-related sexual crime and to verify the limitations of such interpretation, and then to seek new legislation theory on Sexual Intercourse by threat of Authority. , Korean Criminal Procedure Law stipulates that judges shall decide according to his/her own conscience in rendering sentences, and gender sensitivity shall be regarded as the conscientious asset that shall naturally be functioning in judges’ determination of facts in any criminal case. This thesis, concerned with loss of substance of the principle of victim’s interest, criticizes the sentence where the gender sensitivity as the conscientious asset of judge was specified as the basic principle for determination of evidencing power, in case basic principle for determination of evidencing power is suspicious. Meanwhile, gender sensitivity gave influence on interpretation theories of Sexual Intercourse by threat of Authority to cause various interpretation theories to be unfolded. However, from any viewpoint, difficulty in verifying existence of cause-and-effect relationship between power and behavior of sexual intercourse remains as the task to be resolved. In this regard, this thesis raises perception on gender sensitivity to present new legislation theory from legal paternalism perspectives based on recent legislation proposals and analysis on the concept of power in interpretation theories.