미성년자 등 간음죄에 있어서 ‘위력’의 의미

Abstract

Although sexual intercourse by the threat of force against minor(adolescents) or the disabled is provided as a critical crime in the korean criminal law, there are few discussions in earnest about the meaning of 'the threat of force' for this kinds of crime-factor. Meanwhile, korean supreme court presents own guidelines about the meaning and standard of judgment for the threat of force and made a specific cases. But this way, textbook problem by metaphysical abstraction about the meaning of the threat of force is remained as before or critical opinion likes that, it’s a excessive-purposive construction by victim’s subjective intention and situation beyond textual meaning of the threat of force, can be raised. To the correction of this problem for construction the meaning, next three points about the original meaning of ‘the threat of force’ must be considered in the way of case-solution. First point is that, use of the status in objective situation made by the certain status. Second, critical invasion to the victim’s right of self-decision for sexual activity by the threat of force must be confirmed. Lastly, causal relationship between the act of threat and the critical invasion to the victim’s right of self-decision must be certified clearly. If there is enough-wide popular consensus about necessity for the minor’s and the disabled person’s right of self-decision for sexual activity, and if this consensus can support soundness of the attitude of supreme court, it means that, now we have to discuss about the legislative activity for the crime of sexual intercourse with ‘non-consent’.