성매매특별법상 자발적 성매매행위의 비범죄화 가능성 고찰

Abstract

Recently domestic and international debate on decriminalization of voluntary sexual traffic is intensified ever, such as the imminent decision by Korean Constitutional Court on the adjudication of constitutionality thereon according to paragraph 1, article 21 of the Act on the Punishment of Acts of Arranging Sexual Traffic, and the recommendation on decriminalization of consensual sexual traffic by international Amnesty at the International Council Meeting held in August 2015 at Dublin, Ireland etc. By the way, the approach to voluntary sexual traffic from the viewpoint of social structure and criminal policy only cannot provide any clue to the resolution thereof. In this record, this study confirmed the possibility of decriminalization from the viewpoint of benefits and protections of the law. This study demonstrates that human right or human dignity shall not become benefits and protections of the law due to inherent vacantness, and it is confirmed that sexual custom is the accumulated sexual emotion of the society, and the predominance thereof upon the basic right infringed by the criminalization cannot be asserted. Meanwhile, this study demonstrates that sexual self-determination right cannot become the protections of the law for voluntary sexual traffic, despite of the dispute on differentiation of arbitrariness. As such, voluntary sexual traffic is a crime for which the benefits and protections of the law are difficult to be verified. Sexual traffic involves many problems in practice. The effect of punishments thereon can scarcely be anticipated due to low prosecution rate, light penalty and abuse of zone school system etc. In this regard, this thesis contends decriminalization of voluntary sexual traffic as theory of legislation. If the society cannot reach the consensus on social agreement of decriminalization due to the different understanding of sound sexual custom, the way of defining voluntary sexual traffic and sexual traffic for subsistence as circumstances precluding wrongfulness to the extent the infringement of human right of is minimized, is presented as the second-best solution.