강제추행죄에 있어서의 폭행･협박의 개념 — 대법원 2023. 9. 21. 선고 2018도13877 전원합의체 판결 — (The conception of violence and intimidation in indecent assault — Supreme Court en banc decision 2020Do4140 decided September 21, 2023 —)

서지정보

· 발행기관 : 충북대학교 법학연구소
· 수록지 정보 : 법학연구 / 35권 / 1호 / 35 ~ 68페이지
· 저자명 : 김재중, 강현주

초록

Over the last several decades, the Supreme Court has maintained the dichotomous position that the punishment of “preceding physical force or intimidation type of forcible indecent assault” should require a violence not resistible by the victim, while the so-called “surprise molest” should require only the exercise of a physical power against the victim’s intention regardless of the intensity of the power. However, with the en banc decision 2018Do13877 on September 21, 2023, this stance was altered. Namely, they ruled that the degree of violence or threat sufficient for punishment involves only either the exercise of unlawful tangible force against the victim's body or a threat that would generally cause fear in the victim, thereby altering the previous precedent.
Such a change in the Supreme Court's stance reflects the need to protect victims of sexual crimes in accordance with social realities and changing times. It also takes into account the reality that in judicial practice, violence and threats are already interpreted as narrow forms of violence and threats, aiming to resolve the inconsistency with established case law. Nevertheless, this change in interpretative theory by the majority opinion raises concerns about potential violations of the principle of legality and the prohibition of retroactive punishment, as well as the principle of culpability. Moreover, it would be difficult to discern the molest following violence and threat and the forced molest or the quasi-molest. Above all, the case of the Supreme Court ruling could well be sentenced ‘guilty’ according to the precautionary indictment. In other words, the Supreme Court attempted to change the concepts of violence and threat, overring the judicial precedents. Namely, the needs for such a change could not but be doubted.
If it should be deemed necessary to punish the molest not allowed by the victim, while keeping the judicial precedents, it would be desirable to have a social consensus formed and thereupon, help solve the issue through a legislative procedure, because we have adopted the System of Statute Law. Nevertheless, the Supreme Court has changed their judicial precedent. Anyway, it is hoped that our academic circle, courts, etc., will discuss not only the forced molest but also the rape and thereupon, will define the bone of issues through the legislative procedure. In this context, it is perceived that the Japanese law stipulating ‘the Unagreed Molest’ would be suggestive for our efforts to amend our Criminal Code.

영어초록

Over the last several decades, the Supreme Court has maintained the dichotomous position that the punishment of “preceding physical force or intimidation type of forcible indecent assault” should require a violence not resistible by the victim, while the so-called “surprise molest” should require only the exercise of a physical power against the victim’s intention regardless of the intensity of the power. However, with the en banc decision 2018Do13877 on September 21, 2023, this stance was altered. Namely, they ruled that the degree of violence or threat sufficient for punishment involves only either the exercise of unlawful tangible force against the victim's body or a threat that would generally cause fear in the victim, thereby altering the previous precedent.
Such a change in the Supreme Court's stance reflects the need to protect victims of sexual crimes in accordance with social realities and changing times. It also takes into account the reality that in judicial practice, violence and threats are already interpreted as narrow forms of violence and threats, aiming to resolve the inconsistency with established case law. Nevertheless, this change in interpretative theory by the majority opinion raises concerns about potential violations of the principle of legality and the prohibition of retroactive punishment, as well as the principle of culpability. Moreover, it would be difficult to discern the molest following violence and threat and the forced molest or the quasi-molest. Above all, the case of the Supreme Court ruling could well be sentenced ‘guilty’ according to the precautionary indictment. In other words, the Supreme Court attempted to change the concepts of violence and threat, overring the judicial precedents. Namely, the needs for such a change could not but be doubted.
If it should be deemed necessary to punish the molest not allowed by the victim, while keeping the judicial precedents, it would be desirable to have a social consensus formed and thereupon, help solve the issue through a legislative procedure, because we have adopted the System of Statute Law. Nevertheless, the Supreme Court has changed their judicial precedent. Anyway, it is hoped that our academic circle, courts, etc., will discuss not only the forced molest but also the rape and thereupon, will define the bone of issues through the legislative procedure. In this context, it is perceived that the Japanese law stipulating ‘the Unagreed Molest’ would be suggestive for our efforts to amend our Criminal Code.

참고자료

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