강제추행죄 구성요건으로 ‘폭행·협박 재해석론’에 관한 비판적 검토 -대법원 2023. 9. 21. 선고 2018도13877 전원합의체 판결을 중심으로-

Abstract

Recently, the Supreme Court boldly abandoned its long-standing position of consistently interpreting the constitutive meaning of violence and threat in ‘the narrowest sense’and switched to ‘the narrow interpretation’ in establishing the crime of Indecent act by compulsion. Apart from agreeing with the purpose of the change in interpretation, that is, the need to prevent sexual violence crimes, substantially protect sexual self-determination, and take sufficient protective measures such as preventing secondary harm to victims, There is concern in that it is necessary to be very cautious about expanding the scope of the crime through interpretation rather than legislation. Moreover, there are also legal interpretation problems that may arise from changing the narrowest interpretation standard to a narrow interpretation. In this paper, we examine from a critical perspective, the ‘violence and threat reinterpretation theory’ regarding the Indecent act by compulsion. To this end, we examine the legal nature of the crime and the legal principles of surprise indecent that accepted the concept of violence in the narrow sense. In relation to the theory of reinterpretation, we reviewed the problem of systematic interpretation between Indecent act by compulsion and similar sexual assault crimes, as well as the risk that the scope of punishment for the sexual crime could be excessively expanded through the reinterpretation theory.