위계에 의한 아동․청소년 간음죄에서의 ‘위계’의 의미

Abstract

Adultery on minors, stipulated in criminal code and the Act on the Protection of Children and Juveniles from Sexual Abuse, by a deceptive scheme and child and juvenile adultery by a deceptive scheme are both specified as illegal. Especially, given that adultery crime by a deceptive scheme of adults is committed by making minorities including child and juvenile put his or her foot in his or her mouth or by using ignorance of minorities to have an intercourse with them, juvenile and child adultery need to be understood with a wider perspective so that the range of juvenile and child adultery crime include any kind of fraud or enticement in the purpose of committing juvenile adultery. Moreover, when considering specialty of sex offense or adultery on child and minors, it is not desirable that court borrows the exact concept of deceptive scheme established from other types of crime such as obstruction of justice and obstruction of business to apply to the concept of deceptive scheme of crimes similar with child and minor adultery and formulates a negative requirement, called interpreting facts, of deceptive scheme. Supreme court interpreted sexual intercourse against minors by deceptive scheme addressed in Articles 302 of Criminal Law on a limited basis through recent court decisions and ruled that only misconception, mistake, and ignorance about adultery itself are applicable to deceptive schema. Accordingly, the concept of deceptive scheme tends to be understood in the same vein with child and juvenile adultery by deceptive scheme, addressed in the fourth clause of Article 7 of Child and Juvenile Sex Protection Act, regarded as a same criminal composition requirement. However, if the concept or application of deceptive schema is interpreted in a limited basis just like the supreme court did, case review will have no option but to be excluded from prosecution. Based on necessity and appropriateness of punishment for child and juvenile adultery, the concept of deceptive scheme needs to be broaden by including not only fraud done not to make victims recognize he or she is having a sexual intercourse but also fraud by an abuser fundamentally influencing decision making for having an intercourse even the victim is perceiving he or she is having an intercourse. Over 13 years old children or juveniles cannot be a subject for self-determination and furthermore, even they partially admit self-determination for sexual relation, there is still a changeless limitation on consent for adultery. This is one of government’s responsibilities which the government are not supposed to give up and the law for protecting sexual rights of juveniles has to focus on.