법해석의 한계: 미성년자 의제강간, 미수범까지 처벌?

Abstract

This article analyzes the methods of statutory interpretation deciding whether the attempted statutory rape is punishable by the article 305 of the Criminal Law in korea. There are diverse methods to interpret statutes such as linguistic argument, logical-systemic argument, historical-subjective argument and teleological-objective argument. It is strictly forbidden to punish the accused on the analogy of the penal code, because the doctrine of nullum crimen nulla poena sine lege prevails. A statute should be interpreted according to its plain meaning. Judges are not supposed to rewrite laws. When the text of a statute is not clear, the legislative intent may be considered in statutory interpretation. But argument from intention cannot overcome the limit of ordinary meaning or possible meaning of the statute. If anyone who is 14 years old or more have sex with a minor under 13 years of age, he shall be punished as statutory rape even if it is consensual. Statutory rape law is based on the concept that a minor is unable to consent to a sexual act. It also alleviates difficulty in prosecuting forced rape with a minor. The article 305 regulates statutory rape referring severity of sentence for rape explicitly, but not the crime of attempt. The supreme court of korea held the attempted statutory rape should be punished according to legislative intent. But making attempt itself a crime with regard to statutory rape is not useful to protect sexual integrity of minors, for giving a chance for predators to retreat from completing statutory rape results in minors' safety.