업무상 위력 등에 의한 간음죄에 대한 판례 평석 - 서울서부지방법원 2018.8.14. 선고 2018고합75 판결 -

Abstract

Under the title of Sexual Intercourse by Abuse of Occupational Authority, etc., the Article 303(1) of the Korean Criminal Act provides that a person who, by means of fraud or by the threat of authority, has sexual intercourse with another who is under his/her protection or supervision for his/her business, employment or other relationship, shall be punished by imprisonment for not more than five years, or by a fine not exceeding 15 million won. The Western District Court in Seoul has held that although the threat of authority existed under the business, employment or other relationship, the accused did not exercise this authority and the victim’s free will was not under control of the accused so that causality was not proved and therefore the accused is innocent. This paper critically examined the judgment of the court against Sexual Intercourse by Abuse of Occupational Authority of Article 303, Paragraph 1 of the Criminal Act. The Criminal Act stipulated the Article in the independent requirement other than the rape charges because the purpose of this stipulation is to protect the supervised person in the employment relationship considering the vulnerability of the supervised person. The “use” of the political, economic and social status and authority meets the essential purpose of Article 303. However, the court has strictly interpreted the occupational authority as the “exercise” of power. This strict interpretation of “exercise” is based on the strictest interpretation of “by means of violence or intimidation“ as a criteria of rape crime. The court decided the causation between the “exercise” of the threat of authority and infringement of the sexual privacy as the court valued the accuracy and clarity of the legality on the principle of “nulla poena sine lege” while the Korean Supreme Court has held the causation based on probability between misconduct and consequence. The court did not admit the victim’s statement that the victim refused the sexual intercourse because on the empirical rule the accused could not recognize the victim’s refusal. Consent requirement of modern criminal legal system is derived from the liberal legal thought of contract law emphasizing individual autonomy. The consent is an element of crime even in rape under power imbalance of the particular persons in the name of sexual privacy. According to the consentual sexual intercourse model, the prosecutor has burden of proof that there is no consent to sexual intercourse even when the non-consentual rape crime is expressly stipulated in the criminal act. Legal feminists have criticized both the contractual legal thought where the accused can be protected and the dichotomy between the public and the private in law, and suggested the state should intervene the private for substantial justice in favor of powerless women. The feminist practical reasoning so-called contextual reasoning unveils the consentual sex is a myth and rape is a violent crime. Sexual Intercourse by Abuse of Occupational Authority, etc. under the Article 303(1) of the Korean Criminal Act should be interpreted on the basis of the purpose of the provision.