성폭력범죄 처벌규정의 정비에 관한 고찰- 강간죄 등의 행위수단을 중심으로 -

In the last decade, many issues that have been pointed out as problems with sexual violence have changed. Nevertheless, there is a case where there is an unreasonable interpretation of the punishment because there is no punishment provision for sexual violence offenses, or because the punishment provision for sexual violence is unsystematic. An example is the 2018do16002 ruling, which acknowledges the quasi-rape. The ruling is not limited to the problem of inability to quasi-rape, but the cause of the problem can be found in the revision of the punishment for sexual violence offenses. Even if it is adultery not based on the assault, the degree of intimidation or the use of a state of irresistibility required by the Supreme Court, the victim may actually be violated. Thus, it is argued that we should introduce ‘non-consent’ sexual crime. In fact, there has long been a claim in the criminal law association that the sexual violence crime system should begin with ‘non-consent’ sexual crime. However, there is some disagreement, because the introduction of ‘non-consent’ sexual crime can lead to too much punishment for sexual violence. The criminal policy direction to punish sexual behavior against the victim's will is desirable. But it is not desirable to introduce ‘non-consent’ sexual crime simply according to global trends. It is necessary to find ways to accept gender perspectives in the establishment and punishment of sexual violence crimes, but not to undermine the principle of last resort in criminal law. In such a way, it would be desirable to remedy the punishment system according to the level of forcing. Therefore, penalties need to be organized by subdividing the requirements for rape offenses under criminal law.