‘성적 의사결정의 자유’의 의미와 간접정범 형태의 강제추행죄의 성부

The relation between the intrinsic value protected by the sexual crime laws and the feasibility of sexual harrassment by the physical act of the victim35)

On 8th of Februrary 2018, the Supreme Court ruled that the indecent act by compulsion(Korean Criminal Act §298 sexual harrassment) can be accomplished by not only the act of the accused itself, but also that of the third party including the victim itself, pointing out that sexual harrassment is not the kind of crime that can be only carried by the physical action of the accused. In comparative jurisprudence, the theory of the principal through an irresponsible agent is accepted in German, Japan, and Korean criminal laws. Judging from the definition of ‘indecent act by compulsion’ or ‘sexual harrassment’as the act which violates the victim’s right of self-determination and incur the humiliation and digust of average peole and offends the moral sexual standard of the community, this crime can be fully conducted by another party’s engagement such as accomplice or accessories. And when this third agent is innocent, irresponsible or unwilling(in extremely compulsive situation), the accused who leads the whole criminal course can me classfied as a principle. But in this case, we should review not the probability of constituting a principal through the third party’s act in the sexual harrassment area in general, but furthermore the very likelihood of becoming it when the physical practice is carried by the victim itself. This question is not quite simple because the victim in the sexual crime, is not only coerced to behave as he does not want to, but also he decide to get actively involved in oviously sexual act using his body as the bearer of the right of self-determinaion. Therefore, this problem summons the question of what the sexual crime laws pursuit to guard and protect from the assault. If we define it as the victim’s (negative) freedom from the unwilling sexual contact, then this sexual harrassment crime can be carried out by boundless many agencies including the victim itself, as the Supreme Court said. However, the intrinsic value protected by the sexual crime laws should be redefined as the right of self-determination through sexual act by the victim. From this perspective, the sexual practive performed by the victim’s action cannot be evaluated as same as the sexual harrassment by the accused itself. The victim can say he didn’t want the compulsive condition and his sexual act, but the total situation can be appraised as the crime of compulsion(Korean Criminal Act §324). The fact that the victim exercised his right of sexual self-determination frustrates the requirement of the violation of the self-determination, and the remainder ― his failure to enjoy the right of self-determination without the accused’s compulsion ― can be only constitute the crime of compulsion.