스와핑 문제에 대한 형사법적 고찰

Recently in Korean society, there has been a rapid dissemination of exchanging spouses called ‘swapping’, giving a serious blow to the traditional marriage and moral sense of sex. This gives rise to the controversy over the appropriateness of punishment against adultery and the need to legislate punitive law on swappingIn another point of view, swapping made its appearance owing to the changesin moral sense of sex and some assert that swapping is not a subject of regulation by the authorities since it is the matter of personal taste and sexual self-determinationfalling into the category of rights of happiness and freedom protected by the constitutional law in pluralized society. On the other hand, some argue that regulatory actions are required since the swapping which is immoral act will harm the public order and eventually dismantle the communities by destroying the sound moral sense of sex.The regulatory measures and punishment of adultery and swapping are fundamentally the issue of boundary between public power and individual, which is the relationship between law and morals. Unlike the adultery, swapping recently emerged so there are no profound researches or judicial precedents. This article is a basic level study on the need to regulate the act of swapping, summarizing the issues dealt in the press or newspaper and trying to obtain indications on the need to legislate the punitive law on swapping by taking a close look at adultery and rape under the pretext of marriage. We argue that this issue goes beyond the matter of morals and a certain level of criminal punishment is required since the swappingunder the excuse of free sexual self-determination substantially undermines the very essence of marriage and family which is the value protected by the constitutional law.