장애인준강간죄(성폭력처벌법 제6조제4항)의 ‘항거곤란’ 해석론의 전환: 성적 강요죄(독일형법 제177조)의 관점에서

The revised Act on Special Cases concerning the Punishment. etc. of Sexual Crimes worked as the most satisfactory chance to make up for this punishment issue caused by the defects in the difficulty of resistance in relation to quasi-rape against persons with disability but still, several juridical controversies over quasi-rape against persons with disability are arising from several different viewpoints of sexual coercion. To be specific, when it comes to the definition of the difficulty of resistance, it does not see the difficulty of resistance as a ‘noticeable difficulty of resistance’ that would conform to the inability to resistance but as situations of some violences and threats related to victims’ formation of opinions. That is the reason why such juridical controversies are still existing and after all, the requirements and properties of the difficulty of resistance should be treated completely differently from these of unconsciousness and the inability to resistance both in quantity and quality, which would describe circumstances of how one is never allowed for sexual self-determination. In the light of that, when the Act on Special Cases concerning the Punishment. etc. of Sexual Crimes does not accept the difficulty of resistance as causes for quasi-rape against persons with disability, we have two ways to work on it using criminal laws. First, we can stretch the meaning of violence and threat of rape as a mean of act. Second, a third type which is another mean of act of sexual coercion act is established. In terms of the latter, the causes for the difficulty of resistance satisfy more of the requirements to build a case of quasi-rape against persons with disability and therefore, the latter can be interpreted as a general mean of act. Those two measures mentioned so far will make a contribution to the innovative protection of the sexual self-determination of both the challenged people and the non-challenged people who need to be protected.