강제추행죄의 구성요건인 ‘폭행･협박’의 의미에 대한 비판적 고찰 - 대법원 2023. 9. 21. 선고 2018도13877 전원합의체 판결을 중심으로 - (Critical consideration of the meaning of ‘assault and intimidation', which is a constituent requirement of the crime of Indecent act by compulsion)

서지정보

· 발행기관 : 한양법학회
· 수록지 정보 : 한양법학 / 35권 / 4호 / 40 ~ 58페이지
· 저자명 : 류동훈

초록

The Supreme Court recently changed its attitude to require that the meaning of assault or intimidation, which is a component of the crime of indecent act by compulsion, be defined as an assault or intimidation of the crime of assault and intimidation under the criminal law. In this regard, it is also significant that the gap between the trial practice and the legal principles of previous precedents has been bridged at a time when the trial practice does not already see the meaning of assault and intimidation of indecent act by compulsion as the narrowest meaning. The discrepancy between reality and precedent has been resolved. However, we cannot help but raise two major questions.
One is the crime of indecent act by compulsion under the same law, but why the meaning of assault and intimidation between assault and intimidation is different. The other is whether the same statutory sentence of quasi-indecent act by compulsion is logically and systematically reasonable compared to using a state of inability to protest, as the ruling changes the view that assault or intimidation of indecent act by compulsion does not have to make the other party difficult. As it is a critical review of the target judgment, I would like to focus on the latter question and briefly mention the former in relation to the latter issue.

영어초록

The Supreme Court recently changed its attitude to require that the meaning of assault or intimidation, which is a component of the crime of indecent act by compulsion, be defined as an assault or intimidation of the crime of assault and intimidation under the criminal law. In this regard, it is also significant that the gap between the trial practice and the legal principles of previous precedents has been bridged at a time when the trial practice does not already see the meaning of assault and intimidation of indecent act by compulsion as the narrowest meaning. The discrepancy between reality and precedent has been resolved. However, we cannot help but raise two major questions.
One is the crime of indecent act by compulsion under the same law, but why the meaning of assault and intimidation between assault and intimidation is different. The other is whether the same statutory sentence of quasi-indecent act by compulsion is logically and systematically reasonable compared to using a state of inability to protest, as the ruling changes the view that assault or intimidation of indecent act by compulsion does not have to make the other party difficult. As it is a critical review of the target judgment, I would like to focus on the latter question and briefly mention the former in relation to the latter issue.

참고자료

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