폭행 자체가 강간·유사강간·강제추행이 되는 경우의 처벌 문제

The issue of punishment in cases where the violence itself constitutes rape, imitative rape, or indecent act has previously been discussed with respect to whether or not the crime of indecent act by compulsion is established where the violence itself constitutes an indecent act. The Supreme Court of Korea holds that the crime of indecent act by compulsion is committed where the violence itself constitutes an indecent act. However, the issue of punishment in cases where the violence itself constitutes rape, imitative rape, or indecent act, including whether the crime of rape or imitative rape is established when the violence itself constitutes rape or imitative rape, must be discussed. In cases where the violence itself constitutes rape, imitative rape, or indecent act, there may be various opinions as to whether the crime of rape, imitative rape, indecent act by compulsion is established― a positive view, a negative view, a view that limits the degree of the violence to a certain level, a view that limits the establishment of crime only to those involving a sudden surprise attack, etc. However, fundamentally, addressing such cases as where the violence itself constitutes rape, imitative rape, or indecent act in the area of ​​the crimes of rape, imitative rape, indecent act by compulsion essentially entails various problems, such as ① the dualistic interpretation of the crimes, ② making violence practially meaningless, and ③ invading the realm of nonconsensual sexual crimes. Therefore, it is appropriate to resolve these cases in the area of the crimes of quasi-rape, quasi-imitative rape, and quasi-indecent act by compulsion.