위계 간음죄에서 위계의 대상과 인과관계

• 영문명: The object of deceptive scheme and causal relation in adultery by deceptive scheme
• 발행기관: 한국형사판례연구회
• 저자명: 장성원(JANG, Seong Won)
• 간행물 정보: 『형사판례연구』형사판례연구 제29권, 301~342쪽, 전체 42쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2021.06.30

영문 초록

The subject judgment extends the causal relation between the object of the deceptive scheme and the deceptive scheme and adultery in the crime of adultery by the deceptive scheme. The Supreme Court widely sees the meaning of the deceptive scheme and the effect of the deceptive scheme on sexual behavior. For this purpose, the grounds of the Supreme Court are not the concept of a deceptive scheme and a connection method with adultery or a theoretical and structural approach to the causal relation itself. Rather, it is a tendency to strengthen legislatively against sex crimes under special laws, the necessity of sexual protection for juveniles, and a substantial violation of the right to self-determination. The meaning of the right to sexual self-determination, which is a common protection interest in sex crimes, is changed compared to other compulsory sex crimes when it comes to adultery under the deceptive scheme. This is based on the recognition that the right to sexual self-determination exists in a form but has been substantially violated. In this case, the question of whether the other party s right to make sexual decisions should be protected from infringement, otherwise, should be protected from criminalization. In particular, as a result of emphasizing the legal interests of sexual protection for minors, the right to sexual self-determination changes somewhat superficially. The subject judgment is to interpret the meaning of the deceptive scheme differently from the previous one by “summarizing the legislative history of adultery by the deceptive scheme, the meaning of the exercise of sexual self-determination, and the meaning of the deceptive scheme in adultery by the deceptive scheme.” The reason is that adultery under the deceptive scheme can be punished by aggravating life imprisonment. The supplementary opinion is based on the recent trend of strengthening legislation and increasing sentences to protect children and adolescents. This provides the basic logic for reinforcing and expanding punishment in interpreting the scope of deceptive schemes in adultery by deceptive schemes. The purpose of this study was to examine the interpretation of the constituent requirements and the scope of application for the types of sexual offenses that occur in cases of adultery or harassment by the method of deceptive scheme. The Supreme Court is making a judgment on the object of the deceptive scheme and the causal relation, and is showing a new position on the meaning of the deceptive scheme. In the process, the legislative approach, the approach based on the right to self-determination, and the approach in relation to the deceptive scheme and adultery are judged. While reviewing these, I tried to find out the direction of interpretation of adultery by the deceptive scheme.

목차

[대상판결] 대법원 2020. 8. 27. 선고 2015도9436 전원합의체 판결

[연구]

Ⅰ. 들어가며

Ⅱ. 위계 간음죄의 체계와 보호법익

Ⅲ. 위계의 대상과 인과관계 판단

Ⅳ. 판례의 해석근거에 대한 평가

키워드

위계 간음죄 성적 자기결정권 피해자 동의 위계 인과관계 adultery by deceptive scheme right to sexual self-determination consent of the victim deceptive scheme causal relation