비동의간음죄와 인권감수성 -주로 한국과 일본의 논의를 중심으로-

Abstract

Previous discussions on sexual violence have centered on how to punish crimes of sexual violence that have occurred and what efforts should be made to prevent such crimes from recurring. However, there has been a shift to questions such as whether our society understands the nature of sexual violence and whether it is necessary to redefine the scope of punishment. There has been an ongoing debate about whether we need to introduce the offense of non-consensual adultery into our criminal code, and there are still some negative views about it. In fact, there are many issues that need to be considered and resolved before introducing the crime of non-consensual adultery in light of the basic principles of criminal law, such as the last resort of punishment and penal justice. Nevertheless, if we look at so-called sexual violence crimes such as rape with a more sensitive human rights sensitivity, it is not a problem that can be dismissed lightly simply because non-consensual adultery cannot be included in the scope of punishment under our criminal law, or because there are practical difficulties in punishing it even if it is introduced. Especially at this time when the human rights sensitivity of members of society and judges is increasing, it is necessary to discuss the introduction of non-consensual adultery. Meanwhile, Japan, which has a similar criminal law system to ours, amended its criminal law on sexual violence in 2017 and decided to introduce the crime of non-consensual adultery in 2023. This is because, although there has been one amendment to the criminal law on sexual assault crimes, there have been a number of acquittals that have gone against public sentiment, leading to calls for further amendments. In addition, the Criminal Law Review Committee on Sexual Offenses, established by the Ministry of Justice, has been studying the introduction of non-consensual adultery for almost a year. As a result, it was concluded that the Japanese Criminal Code should create "a provision that can cover sexual intercourse against one's will as a punishable offense without being excessive," and that specific consideration should be given to the content of the provision, such as enumerating the means used by the offender and the status of the victim, so that it can be operated more reliably when the crime of non-consensual adultery is introduced. Based on these findings, the amendments resubmitted to the National Assembly changed the provision corresponding to the crime of forced molestation under the Korean Penal Code to 'non-consensual obscenity' and the provision corresponding to the crime of rape under the Korean Penal Code to 'non-consensual sexual intercourse'. In addition, a total of eight acts or victim conditions, including assault, intimidation, and mental or physical disability, were listed to punish so-called non-consensual adultery. As you can imagine, the discussion of the revision of the Criminal Code was initiated due to public opinion based on increased human rights sensitivity, but in the end, the revision of the Criminal Code was made because the Ministry of Justice and others agreed that the introduction of the so-called non-consensual adultery crime was necessary after a long review. These efforts to revise Japan's criminal law are highly relevant to us. In response to the calls for the introduction of non-consensual adultery, I think it is time for our society to once again discuss these issues and consider the direction of reasonable criminal law revision through specific and in-depth examination.