위계・위력에 의한 피해자의 처분행위와 자기책임원칙 -형법 제303조 업무상 위력 등에 의한 간음죄를 중심으로 -

The crime of rape as a basic type of sexual violence crime under Korean criminal law starts from unwanted sex contrary to the victim’s will due to the constituent requirements and the nature of the crime. It is a crime that is established by suppressing the other person’s intention to the extent that it is impossible to resist through assault and intimidation (as a concept of intimidation) and having unwanted sex. On the other hand, the crime of adultery and harassment by hierarchy and power stipulated in Article 303 of the Criminal Act and other special laws requires a certain special relationship between the behavior object or actor and victim. At this time, crimes caused by hierarchy and power are committed by the victim “hand” by the disposition of any legal interest due to the nature of the constituent elements. The victim himself/herself appears in the form of participating in such an act by agreeing to sexual intercourse with the other party or molestation due to mistake, deception, or coercion by hierarchy or authority. This requires self-awareness and acceptance of the other party’s actions, such as commissioned murder or suicide involvement, and the consequential form of his/her own actions combined with them. At least at the point of adultery and harassment, the victim should not have a will to reject the act on his own. This criminal structure has a structure similar to a kind of victim consent. Rape and forced harassment are theoretically not the consent of the victim, but the consent of the victim is applied, and thus the validity of the victim’s consent is questioned. However, it can be seen that this is in line with the judgment of the validity of consent in the law of consent of victims. In the end, this crime is not a crime of anticriminal adultery or non-consent adultery, but a problem of “crime of adultery by defective consent.”