강제추행죄에 있어 폭행의 개념성에 관한 비판적 검토 -대법원 2023. 9. 21. 선고 2018도13877 전원합의체 판결을 중심으로-

Abstract

Article 298 of the Criminal Act (Indecent Act by Compulsion) stipulates punishment for “a person who commits an indecent act against another by means of violence or intimidation.” However, the statute does not categorize specific types of indecent acts by compulsion. With the expansion of legal interests in protecting individual sexual autonomy and the evolving societal recognition of its significance, the necessity of punishing various forms of indecent acts by compulsion has arisen. In response, the Supreme Court, through its precedents, has interpreted Article 298 to encompass two categories Indecent Act by Compulsion Preceded by Violence or Intimidation, which requires prior acts of violence or intimidation, and Indecent Act by Surprise, where the violence or intimidation is directly equated with the exertion of physical force. This judicial interpretation effectively broadens the scope of punishable acts under the provision. The Supreme Court has historically distinguished the degree of violence or intimidation as a means of committing indecent acts based on the specific nature of the conduct. For instance Indecent Act by Compulsion Preceded by Violence or Intimidation was defined in the judgment rendered on January 25, 2007 (2006Do5979), requiring a narrow interpretation of violence or intimidation. Indecent Act by Surprise was defined in the judgment rendered on June 28, 1983 (83Do399), requiring an even narrower interpretation of violence or intimidation. In contrast, the subject judgment eliminates this distinction in violence or intimidation, adopting a standard that requires only the narrower definition of violence or intimidation as an element of the offense. This broadens the scope of punishable conduct under indecent act by compulsion. The significance of the subject judgment lies in its departure from the Supreme Court's long-standing precedent, which has shaped judicial practices concerning indecent acts by compulsion over several decades. Consequently, the impact of this en banc decision is expected to be profound. This paper critically examines the subject judgment in terms of its consistency with other legal provisions, its distinction from the offense of indecent acts by abuse of authority, and concerns about the excessive expansion of the scope of punishable conduct. Furthermore, it proposes legislative solutions to address these issues.