위계 또는 위력에 의한 미성년자간음죄(형법 제302조)에서 ‘위계’의 해석 - 성적 강요죄(독일형법 제177조)의 관점에서 -

Abstract

Concerning the crime of having illicit sex with a minor, Article 302 of Criminal Code prescribes that a person who, through fraudulent means or by the threat of force, has sexual intercourse or commits and incident act on a minor or feeble-minded person, shall be punished by imprisonment for not more than five years. The crime of having illicit sex with a child or juvenile under Article 7(5) of The Act on Protection of Juveniles from Sexual Crimes has almost similar crime elements to be punished by imprisonment for limited term not shorter than 5 years. However, there exist several important legal questions in accepting the two different provisions dealing with actually almost the same issue but with a huge difference in own statutory punishment as they are in terms of interpretation. It is because, in the field of law enforcement, to reduce the flaw of punishability, which could occur by taking the idea of violence and threat in an extremely narrow sense of rape cases, if there was violence and threat less than the violence and threat recognized in rape cases, the aforesaid crime with statutory punishment of no longer than 5 years has been applied supplementarily. Given the nature of the provision, however, if fraudulent means or threat of force should have the same degree of unlawfulness and if threat of force should be broadly interpreted in include not only violence and threat but also social/economic/political position or power as well, the idea of fraudulent means seems also need to be interpreted as broad as the former in a supplementary manner. If that is the case, fraudulent means should not be ‘fraudulent sex with a minor’ but should be ‘illicit sex with a m+ inor based on fraudulent means’ and constitute a kind of ‘illicit sex with a minor’. Then it refers to the acts of making a counterpart be mistaken or taking advantage of involuntariness to achieve a purpose. Thus, such idea should be viewed to include such-purposed deception or seduction. In this aspect, based on this demonstration, this paper looked into the German criminal code provisions related to fraudulent means or threat of force concerning sexual abuse of minor. As a result, the study found that every legal interpretation issue related to such sexual violence crimes originated from the aspect that, basically in the sexual criminal codes, the basic elements of sexual coercion crimes, or, that is, the behavioral means of rape and forced incident, violence and threat, were not the same as the violence and threat of sexual coercion crimes.