판례를 통해서 본 성(性)에 대한 법인식의 변화

• 영문명: The Change of Legal Cognition of 'Gender' through Judiciary Cases - focusing on adultery under promise of marriage, rape and adultery -
• 발행기관: 한국형사법학회
• 저자명: 이용식(Lee, Yong-Sik)
• 간행물 정보: 『형사법연구』형사법연구 제21권 제4호, 295~314쪽, 전체 20쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2009.01.31

영문 초록

In 2009, Korean Constitutional Court decided 'adultery under promise of marriage' unconstitutional even though the same article was constitutional in 2002. As we can see, the point of view has changed - female was just an object of protection in the past, she is now, however, regarded as the subject who has her own sexual self decision. It also means Constitutional Court set the limits between private sector and government's legal act, minimizing parentalism in the aspect of sexual self decision. And the transsexual can be the object of rape is another change. That is, Supreme Court said transwoman is also an 'woman' who is an object of rape(article 297). This judicial decision is fairly encouraging, but it has some problems yet at the same time. Those are examined in this research paper. Following the unconstitutional on adultery under promise of marriage and the expansion the object of rape, adultery is considered. Referring adultery, the cognition of sexual self decision is required. In Korea, punishment of adultery has been constitutional for four times so far. It is necessary to look into what it implies related to sexual self decision. The change of legal cognition can be also seen through Marital rape and swapping cases. Investigating those topics, various point of view shows diverse legal regulation controversy. Even though there are lots of subjects and cases related to gender issue, they have something in common. The change of legal gender conception implies sexual self decision which is on critical border of private and public interest, moral and legal area after all. The problem is where the law sets the limit.

목차

Ⅰ. 서 설 -『혼인빙자간음죄』위헌판결이 갖는 상징적 의미

Ⅱ. 성(性)에 대한 법인식의 변화 - 혼인빙자간음죄.강간죄

Ⅲ. 성적 자기결정권의 관점에서 바라본 변화 - 간통죄

Ⅳ. 새로운 한계사례로서『아내강간』.『스와핑(swapping)』의 처벌문제

Ⅴ. 결 론

키워드

혼인빙자간음죄 강간죄 간통죄 트랜스젠더 Adultery under promise of marriage Rape Adultery Transgender(Transsexusal)