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형사판례연구 제30권.jpg
KCI등재 학술저널

강간죄에서 법원의 피해자 동의에 대한 해석 권한

In today's era of absolute supremacy of democracy, it is not easy to hope that the judgment of the courts will be free from the sense of justice of the common people. However, as an old criminal law principle, the criminal court principle is not a principle that can be easily discarded. Still, the Constitutional Court and the Supreme Court justify their conclusions based on the principle of the criminal court. If so, how should we evaluate the development of a new interpretation that goes beyond the limits of penal texts based on the consequent validity of the judgment as a result? Under the current state, the principle of the criminal court is not an absolute principle of the Constitution or criminal law, but only a tool that is appropriately invoked when necessary. Insofar as the crimes of rape and sexual harassment are regarded as violations of the victim's right to sexual self-determination, his consent is a decisive factor in establishing a crime. Even if his consent is inappropriate in the light of common sense as long as it recognizes him as an equal citizen, the court's custodial supplementation needs to be suppressed. If there is a need to specifically punish the lack of consent, it should be punished by setting a new element in the law and providing a statutory punishment suitable for the illegality. Therefore, it will be criticized for extending the scope of punishment in a way that the court expands the unclear concept in some components to create a de facto crime of nonconsensual adultery that falls under the legislative matter.

Ⅰ. 판결의 검토

Ⅱ. 기존 성범죄 해석론의 변화 추이

Ⅲ. 형법이론학에서 피해자의 동의의 성격

Ⅳ. 결론을 대신하여

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