간통죄와 강간죄에 대한 헌법적 고찰 - 성적 자기결정권의 침해를 중심으로 -

The rules of criminal conversation in relation to right to sexual autonomy must protect the protection benefit of the criminal conversation by a property distribution right of claim in the civil law or a claim for damages by illegal behavior that is not criminal punishment. Therefore, the rules of criminal conversation will be said to be an unconstitutionality rule to infringe a personal right to sexual autonomy in violation of a principle of balancing test. Thus, future our country must abolish a rules of criminal conversation in the criminal law. On the other hand, it is proper to consider a degree of violence and threat in a rape rule by all acts to violate sexual free will of a rape victim. Because the protection benefit of a rape rule protects a right to sexual autonomy of a rape victim. Therefore, it is not proper to consider a degree of violence and threat in a rape rule by an action of a rape assailant is able to put resistance of a victim in impossibility or considerably difficult of resistance of a rape victim like an opinion of the supreme court. Thus, future our country must revise a rape rule in the criminal law to punish it in time rape to violate sincere intention of sex refusal of a rape victim.