청소년성보호법상 위계에 의한 아동․청소년 간음죄에 있어서 ‘위계’의 해석

Abstract

According to the current law, any person who has sex with or commits an indecent act against a child or juvenile by a deceptive scheme or by force is subject to the punishment under the Act on the Protection of Children and Juveniles Against Sexual Abuse rather than under Criminal Act due to the principle of putting priority on the special laws. Starting around the year 2000, there have been the rapid progress in strengthening the punishment over the sexual crime against the juvenile in order to raise the awareness for prevention of sexual crime against the children and juveniles. As an action to keep up with this trend, the Act on the Protection of Children and Juveniles Against Sexual Abuse has been revised in a way that only the statutory punishment has been raised without any essential change in the behavior and attitude with respect to the requirements of crime under Criminal Act. As such, the legislature branch of Korea has just strengthened the statutory punishment through the criminal special laws in order to strictly take actions against the sexual violence and crime against the children and the juvenile. On the other hand, the judiciary branch of Korea has taken a very cautionary attitude with very limited interpretation on the conditions of making up the sexual crime against children and juveniles by a deceptive scheme. So, the Korean courts have judged in most of the actual cases that the assumed perpetrators are innocent, thus making two branches of Korean government conflicting each other in their implementation of laws. Considering that the monetary inducement is usually adopted by the sexual crime perpetrators to get the sexual relation with children or juveniles using their bad economic circumstance, which is also used in the sexual crime against the adults, the Supreme Court of Korea’s position toward the sexual crime perpetrator against the children or juveniles deserves to be criticized as it is in conflict with the current trend of strengthening the punishment of sexual crimes against the children and juveniles. Focusing on this point, this study will try to research the system and interpretation of current laws on the other crimes which have the “deceptive scheme” as one of their requirements and then find out in what direction the interpretation of the deceptive scheme should be interpreted considering the cases of the sexual crimes through the deceptive scheme. In addition, through the meanings of sexual crime through the deceptive scheme, the study would argue for the necessity of the recognition of the concept ‘deceptive scheme which is“ in contradiction of intention”. Then, through the regulation separating the deceptive scheme from the force, the trial of interpretation of the change in the target of deceptive scheme, and correction of the severe imbalance of the statutory punishment occurring in the current legal system, the study would try to get the reasonable method for improvement in the sexual crime against children and juveniles before finishing the study.