성적 자기결정권과 최협의의 폭행·협박 개념의 위헌성

Unconstitutionality of the Right of Sexual Self-Determination and the Violence and Threat in an Extremely Narrow Sense- from the aspect of ‘Sexual Victim’s Dogmatics of Penal Law’ and Sexual Coercion

In 1995, Korea further improved with the amendment of the Criminal Code, when the title of Chapter 32 changed from “Crimes Concerning Chastity” to “Crimes Concerning Rape and Infamous Conduct” deriving the “right of sexual self-determination” as its benefit and protection of the law in legislation. Therefore, crimes concerning rape and infamous conduct is not violating sexual customs that absolutize ‘virginity and chastity’ but violating the freedom of sexual self-determination. The Constitutional Court has abolished the crime of sexual intercourse under pretence of marriage as well as the crime adultery coherent to such context. However, there are critical, doubtful points requiring reviews on its basis concerning such legal interpretation developing with the right of sexual self-determination. 1) Is there enough reasons that the right of sexual self-determination should be differentiated with the other benefit and protection of the law? 2) How should the interpretation of criminal law be for the constitutional value, the right of sexual self-determination, be the legal interest to be protected directly? 3)What is the relation between the violation of the right of sexual self-determination and the violence and threat in an extremely narrow sense? 4) What would be the potential arguments concerning the right of sexual self-determination other than the abolished laws such as the crime of sexual intercourse under pretence of marriage or the crime adultery? Therefore this thesis proved under the above doubtful points that the interpretation of criminal law should respect and avoid not interpreting to realize the right of sexual self-determination of constitutional value, the right of sexual self-determination being the legal interest to be protected means that through teleological interpretation for practical implementation of the right of sexual self-determination from the Sexual Strafrecht, and especially the typical offender-victim situation and victim's view should not be unconsidered. Through this, this thesis came out with the result that the concept and its interpretation of the violence and threat in an extremely narrow sense that precedents of the supreme court supported by the supreme norma of the Constitution violates the void-for vagueness Doctrine of the principle of “a poena[um crimen] sine lege”. To add, as the right of sexual self-determination is the legal interest to be protected which is directly included in the Sexual Strafrecht as basic value of the Constitution, there was also a result that with the right of sexual self-determination as its condition but also limiting the scope of the violence and threat to the extremely narrow sense irrespective of its legal interest to be protected is also unconstitutional interpretation.