성적 자기결정권의 형법적 의의와 기능

Abstract

This study is intended to analyze the meaning and function of sexual self-determination, and to predict what the sexual self-determination will be meaningful in the criminal justice system. The Constitutional Court defines the sexual self-determination as ‘the right to determine the sexual act status and the sex partner’ with respect to the adultery. As an active meaning, the sexual self-determination can be understood as ‘the right to have sex freely by sexual moral’. Also, the sexual self-determination includes ‘the right not to receive an illegal sexual assault(passive meaning)’. The criminal law limits the active meaning's sexual self-determination, on the other hand, it protects the passive meaning's sexual self-determination. In particular, it strongly protects the sexual self-determination of persons who don't have the self-determination ability like the mentally and physically handicapped persons or minors. The following describes the trends of the present criminal justice system that the sexual self-determination is stressed. First, the adultery still exists but it is highly likely to be subject to decriminalization as people say that the law possibly violates the constitution. Second, the Constitutional Court defines that the man and woman's sexual self-determination must be respected as it judges that the crime of sexual intercourse under pretence of marriage is unconstitutional. Third, wife is highly likely to be recognized as an object of rape by husband. Also, the rape without consent is highly likely to be introduced. Fourth, with respect to the lascivious crimes, the regulation for adults has been relaxed, but the regulation for minors becomes stronger. In the present criminal justice system, it can be confirmed that the criminal law's role has been reduced when the sexual self-determination is stressed. Such the situation is not limited to the sexual self-determination, and will produce the same result in all areas that the self-determination can be discussed. However,as the result of trusting the self-determination limitlessly, considering the benefit and protection of other laws must not be neglected. That is, the self-determination must be exercised within the limit of not infringing the other person's determination. Also, there must be the attitude not to neglect the national and social benefits of law as a citizen who lives in the community.