강제추행의 성립범위 확장과 성강요죄 입법 필요성에 대한 소고– 대법원 2018.2.8. 선고 2016도17733 판결을 중심으로 -

Abstract

Recently, the Korean Supreme Court has ruled establishment of indirect perpetration on indecent act by compulsion, in case by threatennig the victim, the victim touched her own body without offender’s direct touch. The contents of the case are as follows. The offender(male) were threatening the victim(female) would spread pornographic photographs, video of her. and then he told her to touch her body or to masturbate, and she did so. in that case, despite the lack of offender’s direct touch, the Korean Supreme Court ruled that it is indirect Perpetration of Indecent act by compulsion. About the case, the first trial court ruled that it is indirect perpetration of indecent act by compulsion, but the appeal court ruled that it is just a offense of compel. So look at what the results are different, despite the sexual freedom of self-determination was violated, the case is controversial whether to admit simple offense of compel or to admit establishment of indirect perpetration on indecent act by compulsion. The Supreme Court has argued in the previous cases that if no-touch can be regarded as the same as touch, it is indecent act by compulsion. therefore, In this case, the victim was forced to follow intent of the perpetrator by threatening to spread the victim's pornographic photographs and videos, and the perpetrator used the victim as the sexual tool of him, for these reasons, The Supreme Court has ruled establishment of indirect perpetration on indecent act by compulsion. However, according to the 'Nullum crime sine lege' principles, there is a lot of criticism about the fact that no-touch is regarded as touch. so, it is doubtful whether the establishment scope of indecent assault was expanded by recognizing the establishment of indirect perpetration. Historically, The Korean Supreme Court has expanded the establishment scope of indecent assault in the following order; Even if the assault and intimidation were not preceded, court acknowledged that If touched, a crime is established; In interpreting the concept of indecent assalt, the offender's sexual intent is excluded; It is touch if no-touch can be regarded as same as touch. Every time the scope is expanded, many criticisms have been made. The case examined in this paper is also subject to criticism. This paper is not intended to criticize establishment of indirect perpetration on indecent act by compulsion but to express critical thinking about the excessive expansion of the establishment scope. Besides rape and sexual assault which using means of assault and intimidation, Considering that the freedom of sexual self-determination of victims in various ways are being violated, I think it is necessary to legislate a crime punishable by 'the type that forces or accepts sexual behavior'. If it does, it will be able to reduce the controversy and protect the victim's sexual self-determination broadly.