군형법 제92조의5 추행죄의 위헌성과 폐지론

Abstract

Article 92-5, Military Penal Code of Korea(MPCK) regulates "sodomy or any other sexual contacts between military service members" as a crime. This provision applies whether the sexual conduct is consensual or nonconsensual. In 2002 the Constitutional Court of Korea held it is not unconstitutional. This paper argues firstly that the provision is too vague to specify the scope of punishable conducts. Article 92-5 applies mainly to the homosexual sodomy. But it is not clear whether that provision applies to all of sexual contacts between military members, including sodomy. The Supreme Court of Korea held that 'any other sexual conduct' under the Article 92-5 is limited to 'abnormal sexual contact pursuing sexual satisfaction'. However, such interpretation is not successful to overcome the vagueness of this provision. Moreover, necessity of such a limited interpretation through 'abnormal' and 'pursuing sexual satisfaction' is not based upon reasonable arguments. On the other hand, it is not clear whether Article 92-5 also applies to the heterosexual sodomy or other sexual contacts ; whether it regulates only sexual contacts in public or it prohibits even sexual contacts committed in private. Therefore, this paper argues that the Article 92-5 is unconstitutional because of its vagueness. Second point of this paper is that such a broad restriction violates the constitutional right to privacy and sexual self-determination excessively, so is unconstitutional. It is said that the Article 92-5 serves to maintain the military order and strong force. However, no case suggests that allowing military members to engage in consensual sexual contact would detract from the military's ability to meet this objective. My conclusion is that the need for maintaining a strict order in the military do not overweigh a military member's fundamental right to privacy and sexual self-determination. So the Article 92-5 which prohibits consensual sexual contacts between military service members should be abolished.