강간죄 및 미성년자 등에 대한 위계간음죄 재론(再論)

This Article is to critically review the recent leading judicial decisions regarding rape. After serious criticism about de-criminalization of spousal rape in academic community as well as women’s rights organization in the 2000s, in 2013 the Supreme Court declared full criminalization of marital rape, changing its 1970 decision of limited criminalization. After strong criticism about the Court’s interpretation of the “battery and intimidation” requirement for the crime of rape in Article 297 of the Korean Penal Code which required that the victim strongly resist in order to satisfactorily demonstrate that she was raped, the Court has also begun to modify its interpretation. These changes show that sexual autonomy is being taken more seriously by the Court in Korea. However, the Court’s interpretation of the “battery and intimidation” requirement still makes unpunishable non-consensual intercourse by low-level “battery and intimidation.” In addition, according to the Court’s interpretation of “deception” in the crime of sexual intercourse with a minor or feeble-minded person in Article 302 of the Penal Code which limits the “deception” into the “deception” of sexual intercourse itself, sexual intercourse by other type of “deception” is de-criminalized. Based on the above analysis, the Article not only provides new interpretation of Articles 297 and 302 but also a draft to revise them.