위계․위력에 의한 성폭력 범죄의 문제점과 개선방안- 최근 판례의 동향과 개정안을 중심으로 -

Recently, the supreme court has widely recognized the establishment of sexual violence crimes by means of fraud or threat through expanding the interpretation of the elements of them; protective-supervisory relationship, fraud and threat. The court has come to recognize protective-supervisory relationship between the job seeker and the person who has the right to hire or may have a substantial influence in the recruitment, even when it is unclear whether he/she will be employed. The court with all members expanded the interpretation of fraud to the process or conditions of having sexual acts. In terms of threat, even if the victim is an adult, the exercise of a weak degree of tangible or intangible force was recognized as threat if he/she explicitly expressed his/her rejection. These recent cases are reasonable in that the perpetrators faced due punishment, but it is hard to deny that the excessively expanded interpretation may conflict with the principle of "nulla poena sine lege". The court's widespread interpretation may be due to the current law restricting sexual violence crimes by fraud or threat to the victims who are mentally or physically challenged, minors, or under protective-supervisory relationship. However the legal benefit on sexual violence crimes is the freedom to engage in sexual acts or the right to self determination to do them, and there is no reason for such perpetrators using fraud or threat to be free from the punishment. In the cases of fraud, even non-disabled adults without protective-supervisory relationship can be victims at any time, and in the cases of threat, depending on the individual's tendency or the special nature of the situation anyone could be a victim. Therefore, the legislation of sexual violence crimes by means of fraud or threat without restrictions on victims is needed.