자발적 성매매 처벌의 위헌성 여부

• 영문명: Isthevoluntaryprostitutionunconstitutional?
• 발행기관: 한국형사판례연구회
• 저자명: 이경재(LEE, Kyung Jae)
• 간행물 정보: 『형사판례연구』형사판례연구 제22권, 203~230쪽, 전체 28쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2014.06.30

영문 초록

On January in 2013, a district judge made a constitutional suit to the Constitutional Court whether voluntary prostitution is unconstitutional. The key point is that the legal interest of the punishing voluntary prostitution is obscure, to punish it is not accorded with the properness of manner and the minimum of victim, and it is questionable in point of equal protection. The question that voluntary prostitution is unconstitutional is during debate since long time ago. Some says it should not be punished because everybody has a sexual self-determination, others it is crime because it is immoral, and the others it is controlled by the state because it is harmful to the moral people. I make a couple of proposals in the following points. Firstly, because the legal interest of punishing voluntary prostitution is obscure, so that it should not be punished. Secondly, punishing voluntary prostitution is unconstitutional because everybody has a sexual self-determination and buying or selling sexual service is absolutely depending on the individual. Thirdly, punishing voluntary prostitution is out of the principle because it goes against with the ultima ratio rule. Fourthly, punishing all the patterns of voluntary prostitution is not possible and punishing some peculiar types of prostitution does not accord with equal protection. Finally, punishing voluntary prostitution is against the principle of less restrictive alternative because everybody has a right to have a sex without force with another. So punishing voluntary prostitution is unconstitutional. However, if the Constitutional Court proclaims that it is unconstitutional, it would give a shock to the ordinary people because they do not have an open mind with it. So I dare to say that punishing voluntary prostitution is committed to the factual decriminalization for a while before punishing adultery is unconstitutional proclaimed by the Constitutional Court.

목차

I. 들어가는 말

II. 대상 결정: 서울북부지방법원 결정

III. 성매매에 대한 다양한 시각과 입법례

IV. 성매매 처벌에 대한 법리 검토 및 문제점

V. 맺음말

키워드

성매매 자발적 성매매 성풍속범죄 보호법익 비범죄화 voluntary prostitution sexual crime legal interest decriminalization