군형법상 추행죄의 문제점과 개선방안

Article 92-5, Military Criminal Act of Korea provides that a person commits sodomy or an indecent act on another shall be punished by imprisonment for not more than two years(Amended by Act No. 9820, Nov. 2, 2009). But this clause is too vague. It is not clear the benefit and protection of the law and concept, method, subject and object of indecent act. Nevertheless, The Constitutional Court of Korea and The Supreme Court of Korea has handed down its decision with constitutional. However, this trend requires special attention, although the Constitutional Court of Korea ruled in 2002 and 2011 that a sodomy clause which penalizes sodomy or an indecent act is constitutionally correct, the clause was indeed unconstitutional, with four out of its nine justices speaking in one voice for the stated 'second sodomy judgment'. Article 92-5 have a matter of great problem in relation to definitude of the principal of 'nulla poena sine lege', fundamental right to privacy and sexual self-determination. Therefore, an immediate revision of this provision is needed. In conclusion, Article 92-5 should be departmentalized. First, a person who, through fraudulent means or by the threat of force, commits an indecent act on same sex, shall be punished by imprisonment or a fine. Second, a person who, through fraudulent means or by the threat of force, commits an pseudo-sexual intercourse using parts of the body, such as the mouth and anus, or implements shall be more heavily punished than the former. Third, a person who, have a homosexual relationship between consenting adults, shall be decriminalized.