간음(姦淫) 개념을 통한 강간죄 및 유사강간죄에 대한 소고

Abstract

In the thesis, many problems are revealed when former adultery concept as‘sexual intercourse with non-legal spouses’is applied to meantime controversial problems. Also if former adultery concept is persisted, although rape’s object of revised criminal law extended women to all human, meantime criticism do not end. This is because main disputes of theories and precedents have focused on object of rape without specific modification about adultery concept. After all, to completely embody a purpose of revised criminal law that extend women to all human in terms of subject on sexual liberty, I think that modification of adultery concept is certainly needed. And what should be defined adultery concept as? most theories admit that adultery concept should be expanded, disagree on specific range of adultery concept. Especially theories tend to broadly expand range of adultery concept to sexual intercourse and sexual behaviors which are relevant to oral cavity and the fundament, based on foreign legislations. But considering adultery concept that is period, local, historic, cultural, relative concept, I think that we need not follow foreign legislations like that. moreover, in case adultery concept is expanded without any limitation, most assaults by penetration are involved in adultery concept so range of rape is excessively extended. thus, adultery concept must be reasonably limited. that is, I want to define the adultery concept as‘Sexual behaviors by genitals or toward genitals.’therefore regulations on assaults by penetration in the criminal law and special laws that are three-classification systems should be deleted.