개정형법상 성폭력범죄규정에 대한 비판적 검토

The provisions for the rape and other sex offenses in criminal code was revised and amended on December 18, 2012. The major contents of revisions are as follows. First, the object of the rape has been changed from ‘Female’ to ‘person’, second, the crime of similar rape(sexual penetration) has been newly adopted in the article 297-2, third, the provision for an offence subject to complaint has been abolished for sexual assaults including rape. And forth, the provision the crime of obtaining sex under the false promises of marriage was deleted. However, despite of this change, the issues of marital rape, homosexual rape and rape to transgender has not been resolved. That is, because adultery is defined as sexual intercourse between a man and woman who are not married, if rape is considered to be an act of adultery in practice, the rapes in marriage and between the same sexes are not coverd. Therfore it is required that rape is redefined as an act of sexual intercourse or deviate sexual intercourse refered to sexual conduct between the sex organs of one person and the mouth or anus of another. As a result, the provision for analogous intercourse in the article 279-2 could be applied to only the sexual penetration such as penetration of the genitals or anus of another person with foreign object or the part of body(other than sex organs) of one person. Also according to abolishing the provision of an offence subject to complaint, it is also required to come up with improvement measures for potential problems that can take place by abolishing the provision, such as preventing the second damaging effects on victim that could occur during trial proceedings. The legal protection and assistance system to victim of sexual violence should be activated and strengthened. Finally, it is needed that the provision for rape and other sex offenses should be regulated only in Criminal Act by streamlining the provisions concerning sexual crimes in the Special Act on Criminal Affairs. Because the requirements for establishment of the crime in the Special Act on Criminal Affairs are similar to the punishing provision in criminal act and criminal act should be played a basic and important role for sexual assaults.