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현행 강간죄 규정에 대한 재검토The review on the current rule of rape in the Criminal Law

Other Titles
The review on the current rule of rape in the Criminal Law
Authors
정준섭
Issue Date
Dec-2010
Publisher
성균관대학교 법학연구원
Keywords
rape; adultery; homosexual rape; transgender rape; sexual assault; 강간; 간음; 남성강간; 성전환자강간; 성폭행
Citation
성균관법학, v.22, no.3, pp 347 - 374
Pages
28
Journal Title
성균관법학
Volume
22
Number
3
Start Page
347
End Page
374
URI
https://scholarworks.sookmyung.ac.kr/handle/2020.sw.sookmyung/7139
DOI
10.17008/skklr.2010.22.3.014
ISSN
1229-943X
Abstract
According to the current article 297 of the Criminal Law, it rules that any person who causes another person to engage in a sexual act by using force or threat shall be imprisoned for 3 years or more than that under this article". The idea called rape is defined as committing adultery using force or threat against women. And also the legal definition of adultery is a sexual intercourse by man and woman who have not marital relations. Therefore, there arouses problem when these legal terms are applied to such cases as marital rape, homosexual rape and transgender rape. In order to resolve this problem, instead of rape, a newly revised name of this crime type so called "sexual assault" was proposed. In addition, it was examined to replace rape as a current necessary condition with the sexual act against the other person without permission. Finally,new amendment of this article of the Criminal Law was suggested. The terms of sexual assault has already been recognized and used practically in a society, so that there is no reason to adhere to using the term of rape which is value immanent and causes confusion in case of legal interpretation.
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