형법상 강간죄의 판단기준에 대한 판례평석

Abstract

This study explores juridical interpretations of ‘assault’, ‘threat,’ and ‘a significantly difficult condition to resist,’that constitute actus reus of the crime of rape, by focusing on the Gwang-ju Superior Court Decision, April 28, 2005 (2005no94) and the Supreme Court Decision, July 28, 2005 (2005do3071). The first and second trials ruled the defendant not guilty because ‘it is not enough to admit the fact that the defendant did assault and threatened the victim enough either to disable the victim’s resistance or to make it significantly difficult to resist. However, the Supreme Court annulled the original decisions by judging that the victim was indeed under the significantly difficult condition to resist given that circumstance even though the defendant did not ‘strongly’ assault and threaten the victim. This is an important decision in that it considers the victim’s position in light of contextual circumstances by giving more flexibility to ‘a significantly difficult condition to resist.’Many cases regarding the crime of rape have enhanced the stereotyped images on a female victim who is vulnerable, weak, and pure. Moreover, a concept of sexual self-determination, which is constitutive of the decision of the crime of rape, has have limitation that it focuses on the right of the individual while over looking continual damages of sexual violence. Nonetheless, there are few precedents which reinterpret the law from a gender perspective, implying that the law is not only a matter of decision, but also a matter of process and interpretation. In this sense, It calls for more studies that reinterpret the existing cases of a rape crime against women from a feminist point of view.