성매매와 형사법적 처벌의 한계 /

Abstract

The principle of criminal policy can be divided into three types. First, the decriminalization maintains that since voluntary prostitution is legalized, it is not a punishment of both sides, and that mediation, abetment and exploitation of prostitution are punished as crimes. Second, the legal regulamentarism maintains that both sides’ behavior of voluntary prostitution is not punished, and that this system controls the behavior of prostitution such as levy of tax on the prostitution, obligation of medical supervision, and authorization of special zone. Third, the prohibitionism, which is enforced in Korea, means that all kinds of prostitution behavior including voluntary prostitution and mediation of prostitution are punished as crimes. From the viewpoint of freedom of self-determination and sexual self-determination rather than feminism or moralism, this paper tries to examine whether or not it is appropriate to select what kind of legislation among them. When the criminal law expects a punishment which is the strictest law-effect, the restriction principle of self-determination demands that self-action should not violate the self-determination of others, and that although self-interest is violated by self-intention, there should be no violation of human life or serious injury of body. Although human image which the criminal law presupposes is not moral but immoral character, the image presupposes ordinary people who do not harm others in a minimal way. So I suggest that people who practice prostitution in a voluntary way is released from the criminal punishment, but that it is advisable that we make a law where only people who force or tempt prostitution should be punished.