성적 자기결정권의 범주 - ‘2015년 간통죄 헌재 결정’과 ‘2009년 혼인빙자간음죄 헌재 결정’을 중심으로 -

The ‘right to sexual self-determination’ refers to the right to decide for oneself whether to engage in sexual activity, with whom to engage in sexual activity, and how to engage in sexual activity. In my opinion, both adultery and adultery under the guise of marriage should not be explained as the right to sexual self-determination. Harm to one of the spouses, protection of marriage and family life, and the obligation of sexual fidelity arising from marriage take precedence, so the adulterer’s right to sexual self-determination is not recognized. On the other hand, in the case of adultery under the pretense of marriage, the adulterer under the pretense of marriage is denied the right to sexual self-determination due to the harm caused by hierarchy. Moreover, recognizing the right to sexual self-determination in adultery and pretending to marry is a big problem because it has the potential to reduce the harm caused by adultery and pretending to marry. Whether or not to punish sexual relations outside of marriage as adultery should not start from the adulterer’s right to sexual self-determination. Considering the marriage system and the marital relationship resulting from marriage, the protection of family life, and the harm inflicted on the other party by sexual relations outside of marriage, it should have been decided whether it is appropriate to punish with punishment or to approach it by means other than punishment. The same goes for the decision to commit adultery under the guise of marriage. The judgment structure is very similar to that of adultery. Adultery under the pretense of marriage should not be viewed as exercising the sexual self-determination of the adulterer under the pretense of marriage. It should have been judged whether the damage inflicted on the victim by adultery under the guise of marriage should be dealt with as a punishment or a means other than punishment. Men’s right to sexual self-determination and women’s right to sexual self-determination should be considered equally. Unlike the discussion of women’s right to sexual self-determination in the discussion of rape and indecent assault, it is my judgment that this is not the case in the discussion of adultery and adultery under the guise of marriage. If the ‘male right to sexual self-determination’ is recognized in adultery and adultery under the pretense of marriage and the ‘women’s right to sexual self-determination’ is not protected in adultery under the pretense of marriage, the evaluation of the damage and suffering inflicted will be different. It is considered to be a very important issue regardless of whether adultery and adultery under the pretense of marriage are unconstitutional to accurately grasp where the ‘right to sexual self-determination’ is located and the category of the ‘right to sexual self-determination’. If we start by recognizing the sexual self-determination of adulterers and adulterers under the pretense of marriage, there is room for reducing the damage (harm) caused by adultery and adultery under the pretense of marriage. In adultery and adultery under the guise of marriage, discussions on ‘men’s right to sexual self-determination’ and ‘discussion on women’s right to sexual self-determination’ should be dealt with very seriously as they are directly connected to the damage and suffering inflicted on women.