간접정범의 몇 가지 문제점과 그 입법론적 해결방안 - 강요된 자기추행 및 이른바 강간상황극 사례를 중심으로 -

Abstract

The problems with Article 34, Paragraph 1 of the Korean Criminal Code, which regulates indirect offenses, are well-known. It not only fails to cover various cases of indirect offenses, such as the so-called 'offensor behind the offensor,' but also leads to a distortion of theoretical discussions on this topic. In this situation, exceptional cases have arisen where an offensor forces the victim to molest themselves, resulting in the offensor being punished for indirect offenses for violent harassment. For example an offensor induces another person to perform 'rape role play' scenarios, which can be classified as examples of the 'offensor behind the offensor.' In practice, the offensor who carried out the 'rape role play' scenarios was punished for rape, while the initial instigator was held liable for attempted rape through indirect offenses. Even in cases involving only two individuals, a offensor and a victim, it should be assumed under existing law that indirect offenses exist, although this deviates from the typical example of indirect offenses. Accordingly, in this work, assuming an increase in the statutory penalty for the crime of coercion or the introduction of new sexual coercion, it is concluded that it may be a crime of coercion or sexual coercion, but it cannot be considered an indirect offenses for violent harassment. Furthermore, it is proposed that legislative measures be taken in the future to establish indirect offenses as a criminal type within a three-person framework. Concerning the 'rape role play' scenario, it is suggested to initially amend Article 34 of the Korean Criminal Code as clearly as in Germany. The question of the 'offensor behind the offensor' must be seriously discussed in our country. Based on this discussion, it will be possible to hold the 'offensor behind the offensor' accountable for the completion of the rape that occurred within a residence. Beyond the discussion of the 'offensor behind the offensor,' there is also the possibility of limiting the criminal responsibility of the instigator to an attempted rape. The focus of this work is to emphasize the need to amend Article 34 of the Korean Criminal Code to initiate substantive discussions on these issues.