성적 자기결정권의 형법적 의의와 기능

이얼 ( Eol Lee ),김성돈 ( Seong Don Kim ) 단국대학교 법학연구소 2010 법학논총 Vol.34 No.2

This study is intended to analyze the meaning and function of sexual self-determination, and to predict what the sexual self-determination will be meaningful in the criminal justice system. The Constitutional Court defines the sexual self-determination as `the right to determine the sexual act status and the sex partner` with respect to the adultery. As an active meaning, the sexual self-determination can be understood as `the right to have sex freely by sexual moral`. Also, the sexual self-determination includes `the right not to receive an illegal sexual assault(passive meaning)`. The criminal law limits the active meaning`s sexual self-determination, on the other hand, it protects the passive meaning`s sexual self-determination. In particular, it strongly protects the sexual self-determination of persons who don`t have the self-determination ability like the mentally and physically handicapped persons or minors. The following describes the trends of the present criminal justice system that the sexual self-determination is stressed. First, the adultery still exists but it is highly likely to be subject to decriminalization as people say that the law possibly violates the constitution. Second, the Constitutional Court defines that the man and woman`s sexual self-determination must be respected as it judges that the crime of sexual intercourse under pretence of marriage is unconstitutional. Third, wife is highly likely to be recognized as an object of rape by husband. Also, the rape without consent is highly likely to be introduced. Fourth, with respect to the lascivious crimes, the regulation for adults has been relaxed, but the regulation for minors becomes stronger. In the present criminal justice system, it can be confirmed that the criminal law`s role has been reduced when the sexual self-determination is stressed. Such the situation is not limited to the sexual self-determination, and will produce the same result in all areas that the self-determination can be discussed. However, as the result of trusting the self-determination limitlessly, considering the benefit and protection of other laws must not be neglected. That is, the self-determination must be exercised within the limit of not infringing the other person`s determination. Also, there must be the attitude not to neglect the national and social benefits of law as a citizen who lives in the community.

기혼 남녀의 정서적 성숙 및 자기지각이 부부간 성적 자기결정권에 미치는 영향과 TV 불륜 드라마에 대한 비판의식의 매개효과 검증

이희진,이원준 사단법인 한국안전문화학회 2023 안전문화연구 Vol.- No.20

This study is an empirical study to identify married men and women's perception of sexual self-determination and related factors, with the recognition that having a clear awareness of the right to sexual self-determination between husband and wife is an effective approach to preventing coercive sexual problems in extramarital relationships. This study aims to reveal the direct effect of emotional maturity and self-awareness on married men and women's perceptions of sexual self-determination between couples, as well as the mediating effect of criticism of TV dramas with the theme of infidelity. The research data are obtained by conducting an online survey of married men and women(614), and the data are analyzed based on the structural equation model. As a result, first, married people have a fairly good level of awareness of sexual self-determination, which shows higher levels of women than men. Second, it is found that married men and women's self-awareness does not directly affect their sexual self-determination rights, but can significantly affect their critical consciousness of adultery drama as mediators. Third, it is confirmed that married people's right to sexual self-determination is greatly affected by their emotional maturity. The positive effect of their emotional maturity on their sexual self-determination rights is further strengthened through the critical consciousness of married people against affair drama. It is verified that critical consciousness on infidelity drama can have a strong impact directly and indirectly on married couples' sexual self-determination rights. It shows that the use of media such as adultery dramas is effective in strengthening the right of sexual self-determination between married men and women. Emotional maturity and self-awareness directly or indirectly affect the right of sexual self-determination between couples. In addition, it has verified that it is a psychological characteristic that can significantly affect the consciousness of criticism of adultery dramas, which can have a significant impact on the right to sexual self-determination between them. The practical and policy implications of the research results are discussed to find ways to improve married men and women's awareness of the right to sexual self-determination between husband and wife.

개정형법상 성적자기결정권의 의미와 보호의 실제

박성민(Park, Sung-Min) 성균관대학교 법학연구소 2013 성균관법학 Vol.25 No.3

In December 2012, the Criminal Law was revised with regard to sexual violence crime. The motive for such revision is that the former Criminal Law could not effectively respond to sexual crimes that have been brutalized and diversified. The main points of revisions are found as follows; ( i ) object of sexual crime is expanded from women to a person, (ii) similar rape is newly enacted, (iii) Adultery under promise of marriage was deleted, (iv) The offense subject to prosecution on complaint was abolished. Due to revision of Criminal Law there was fundamental change in the traditional scope of protection on sexual self-determination as well. Accordingly, there arose a need to verify the meaning and contents of the sexual self-determination as the benefit and protection of the law. The purpose of this study is to review the meaning of right to self-determination against rape, forced molestation and similar rape, which are the legal interest protecting sexual self-determination, among sexual violence crimes, and to check how protection of sexual self-determination has changed in comparison with the former Act. Firstly, similar rape adopted at this revision is meaningful in that behaviors of quasi sexual intercourse are defined as separate crime. However, as behaviors of quasi sexual intercourse have been a type of molestation, this revision can hardly be regarded as the expanded protection on sexual self-determination. Meanwhile, expanded scope for object of sexual crime can be highly evaluated in the progressive attitude to accept the violence to the male by female and putting an end to the dispute on rape crime on transsexuals. More than anything else, abolition of offense subject to prosecution on complaint may be regarded as the core measure to expand scope of protection in that the status of sovereign power is solidified as guardian for protecting the sexual self-determination. Seen from the Court’s positive viewpoints on recent revision of Criminal Law or marital rape, the protection on sexual self-determination from Criminal Law’s viewpoints will advance to the direction to realize the ultimate value of sexual equality encompassing equality between two sexes and further to sexual minorities as well. However, the direction shall not be such one that would damage the fundamental value of freedom, as the sexual self-determination comprises the freedom of sexual decision making and sexual behaviors.

형법상 성적 자기결정권 개념에 대한 성찰

박혜진(Park, Hye Jin) 한국형사법학회 2009 刑事法硏究 Vol.21 No.3

The concept of 'Sexual Self-Determination' is not unfamiliar with the Criminal Law. However, The answer to the question, "what is sexual self- determination," is not easy and so this issue needs to be further discussed. This is why Sexual Self-Determination is gradually distorted, extended, or disregarded according to the speaker’s intention or other circumstances. Sexual Self-Determination has been usually discussed and advocated with Specific Crimes, etc., not with its nature, legal foundation, and development background. Now, the concept that the legal interest prohibiting sexual offences is considered, not a sense of virtue or sex liberation, but Sexual self-determination, is established, and thus there is necessity for a correct interpretation and understanding as to the element of sexual offense, and the relation between individual sexual offenses needs to be formed again. This paper focuses on the concept of sexual self-determination, the scope of such concept, and the issue of whether the understanding about sexual self-determination, which is the legal interest of sexual offense, is appropriate or valid. In addition, as one of the important matters, if its new reflection or comprehension need, this paper focuses on what should be done. For this, I studies the relation between sexual self-determination and constitutional self- determination, and reviews its character based on the dual structure of the sexual self- determination. Then, I inquiries about its main points and analyzes two sides of view, i.e., the freedom of decision-making and the protection of bodily harm. This paper looks into an offense subject to prosecution only on complaint from the victim and its contradiction. Lastly, This paper makes a comparative study concerning sexual offense and then, proposes its new concept.

성적 자기결정권과 최협의의 폭행·협박 개념의 위헌성

최은하(Choi, Eun-Ha) 한국피해자학회 2015 被害者學硏究 Vol.23 No.3

In 1995, Korea further improved with the amendment of the Criminal Code, when the title of Chapter 32 changed from “Crimes Concerning Chastity” to “Crimes Concerning Rape and Infamous Conduct” deriving the “right of sexual self-determination” as its benefit and protection of the law in legislation. Therefore, crimes concerning rape and infamous conduct is not violating sexual customs that absolutize ‘virginity and chastity’ but violating the freedom of sexual self-determination. The Constitutional Court has abolished the crime of sexual intercourse under pretence of marriage as well as the crime adultery coherent to such context. However, there are critical, doubtful points requiring reviews on its basis concerning such legal interpretation developing with the right of sexual self-determination. 1) Is there enough reasons that the right of sexual self-determination should be differentiated with the other benefit and protection of the law? 2) How should the interpretation of criminal law be for the constitutional value, the right of sexual self-determination, be the legal interest to be protected directly? 3)What is the relation between the violation of the right of sexual self-determination and the violence and threat in an extremely narrow sense? 4) What would be the potential arguments concerning the right of sexual self-determination other than the abolished laws such as the crime of sexual intercourse under pretence of marriage or the crime adultery? Therefore this thesis proved under the above doubtful points that the interpretation of criminal law should respect and avoid not interpreting to realize the right of sexual self-determination of constitutional value, the right of sexual self-determination being the legal interest to be protected means that through teleological interpretation for practical implementation of the right of sexual self-determination from the Sexual Strafrecht, and especially the typical offender-victim situation and victim's view should not be unconsidered. Through this, this thesis came out with the result that the concept and its interpretation of the violence and threat in an extremely narrow sense that precedents of the supreme court supported by the supreme norma of the Constitution violates the void-for vagueness Doctrine of the principle of “a poena[um crimen] sine lege”. To add, as the right of sexual self-determination is the legal interest to be protected which is directly included in the Sexual Strafrecht as basic value of the Constitution, there was also a result that with the right of sexual self-determination as its condition but also limiting the scope of the violence and threat to the extremely narrow sense irrespective of its legal interest to be protected is also unconstitutional interpretation.

간통죄의 존폐론에 관한 헌법적 고찰

이지현(Ji Hyun Lee) 중앙법학회 2013 中央法學 Vol.15 No.2

The Constitutional Court has ruled four times that punishment for adultery is constitutional. From first to third ruling, the Constitutional Court took Article 10 of constitutional law as constitutional base of sexual self-determination, but at the forth ruling, its constitutional base was both Articles 10 and 17 of constitutional law. However, Article 17 of constitutional law seems to be appropriate for the constitutional base of sexual self-determination. It is because sexual behavior and rights to determine his or her sex partner must be protected by the code of freedom and privacy of personal life. When the Constitutional Court carries out constitutional review by taking all the legal effects into account, a common base for adultery is sexual self-determination. In other words, the Constitutional Court has ruled as well: (1) the first clause of Article 36 of constitutional law is a constitutional guarantee as a constitutional principle as well as civil liberty-oriented basic human rights; (2) the first clause of Article 11 of constitutional law presupposes sexual self-determination via its content of equality; and the principle of excess prohibition in the second clause of Article 37 of constitutional law which includes the principle of proportionality between obligation and penalty is about the limit of basic human right restriction for sexual self-determination. Therefore, constitutional review of adultery is to rule whether the restriction of sexual self-determination is legitimate constitutionally or not. As the standard of constitutional review for adultery, the Constitutional Court applied the principle of excess prohibition in the second clause of Article 37 of constitutional law, and decided it is difficult to admit the excess prohibition of individual`s sexual self-determination via its viewpoint of constitutionality. Regarding the common good achieved, the Constitutional Court decided that it is possible to admit its crucial common good as well as balance of legal interests, in that it protects good sexual morality and guarantees marriage and family systems. However, since the regal reality on sexual self-determination has changed, national interference in individual`s sexual behavior and sexual duty of good faith can be infringement of freedom and privacy of personal life. Next, some argues that punishment for adultery must be maintained for the benefit and protection of adultery, and punishment for adultery can protect women, but punishment for adultery must be abolished by following reasons: First, punishment for adultery does not protect marital relationship and monogamy, namely the benefit and protection of the law, only irreparably damages marital relationship in the course of criminal penalty for adultery and causes pains to all the family members, thus dismantling family and leaving an inerasable scar on them. Second, punishment for adultery is severer for women than for men. Men who are relatively stronger economically can have the ability to pay enough alimony and therefore be exempted from punishment for adultery, but women who are economically weaker cannot but be punished. In addition, women can suffer from both penalty and social criticism. As a result, it is doubt whether punishment for adultery is for women or not. Third, the reality that statutory punishment is limited in a prison sentence makes difficult to operate the law appropriately, restricts judge`s discretionary power for the determination of punishment, and allows the government to forcibly execute individual`s sexual duty of good faith, even using penalty. This cannot but be excessive national interference in individual`s marital life. Domestic perception of sex and love for the present is that the government must not interfere in individual`s sexual life through laws, and an important constitutional right is not the unconditional maintenance of family but individual`s sexual self-determination. Above all, the self-regulation of marriag

성적 자기결정권에 대한 심리학 연구

이은진 한국여성심리학회 2015 한국심리학회지 여성 Vol.20 No.3

The purpose of this study was to investigate psychological studies of sexual self-determination right on women. Previous studies about sexual self-determination rights with new terms of ‘sexual self-assertiveness’ and ‘sexual self’ were examined in the context of several couple relationships. Researchers reported the correlations of sexual self-determination rights with dating violence, domestic violence and sexual violence. This study found that violating a person’s sexual self-determination right produced bad results on woman’s mental health. The psychological variables used in previous studies included the following: gender stereotype, dating violence, domestic violence and sexual violence, sexual communication and satisfaction with romantic and marital relationship. According to the review, researches with the concept of a sexual self-determination right were explained and enriched to a new term of specialized concept. Lastly, the limitations and directions for the future research were also discussed based on the research findings.

자유주의적 성교육과 자기성결정권 개념에 대한 비판적 고찰

유진숙(Ju, Jin-Sook) 숙명여자대학교 아시아여성연구원 2015 아시아여성연구 Vol.54 No.1

본 논문은 자유주의적 성교육과 자기성결정권 개념의 한계와 문제점을 비판하고 성교육 보완의 방향성을 모색하는 규범적 연구로 수행되었다. 자유주의적 성교육은 개인이 자기성결정권을 보유하고 있다고 전제하며 성적 가치보다는 중립적인 생리적 정보의 전달에 치중한다. 그러나 급증하는 청소년의 성문제를 고려할 때 청소년이 자기성결정권을 이미 확보?행사하고 있다고 전제하는 것은 문제가 있다. 청소년의 자기성결정권은 성교육을 통하여 강화되어야 하며 이 때 자기성결정권 개념의 적용에 두 가지 요소가 고려되어야 한다고 본다. 첫 번째는 여성의 자기성결정권이 사회?심리적 요인들, 그리고 성불평등 구조 하에서 근본적으로 제약되어 있다는 점이다. 다양한 제약요소에 대한 복합적 고찰을 사상한 채 ‘동의’의 문제에만 집중할 때 자기성결정권 개념은 여성에게 훨씬 불리하게 작동할 수 있다. 두 번째는 성적 가치관의 혼란 속에서 자기성결정권이 가해자의 논리로도 활용될 수 있다는 점이다. 자기성결정권의 사회적?법적 해석은 보다 명료한 성도덕과 성질서의 확립을 요구한다. 결론적으로 본 논문은 자유주의적 성교육의 발전을 위해서는 성적 가치관의 정립과 성인지적 내용의 보완을 통해서 청소년의 자기성결정권이 강화되어야 한다고 주장한다. 상호적 책임성에 근거한 성적 가치관의 정립, 그리고 남녀의 상이한 성심리 가동 방식에 대한 이해는 청소년의 자기성결정권을 강화하고 성문제를 예방하는 데 기여할 것이다. Libertarian sex education focuses on the delivery of neutral biological sexual knowledge: thus, decisions on the sex act, partner, the way of sex belong to personal responsibility. But the problem of libertarian sex education is that the concept of sexual self- determination implies not only passive right to be protected from sexual misuses but also the active right to practice one’s own sexual desire, can be used to justify the offender’s point of view. Additionally, the concept of sexual self-determination can be disadvantageous for women when social, psychological and structural factors restricting practical exercise of sexual self-determination of women are not considered. In conclusion, this paper argues that the current sex education should be complemented through promoting sexual self-determination. Sexual self-determination could be strengthened not only through moral education but also education about gendered sexual psychology. Because sexual desire and system of sexual psychology are differently expressed by men and women, understanding of differences of sexual psychological system could contribute to promoting the sexual self determination.

성적 자기결정 집단미술치료 프로그램이 지적장애 성인의 성적 자기결정에 미치는 효과

최종순,최은영,공마리아 한국예술심리치료학회 2017 예술심리치료연구 Vol.13 No.2

본 연구는 성적 자기결정 집단미술치료 프로그램이 지적장애 성인의 성적 자기결정 능력에 미치는 효과를 살펴보고자 하였다. 이러한 목적을 달성하기 위해 D시 거주 지적장애 성인들 가운데 본인과 보호자가 본 연구의 목적에 동의하여 동의서를 제출한 지적장애 성인 24명을 실험집단, 대기통제집단에 12명씩 무선배치하여 2016년 1월 20일∼2월 26일까지 매주 2회, 60분씩 총 12회기에 걸쳐 진행하였다. 연구도구는 강둘순(2005)이 일반청소년을 대상으로 구성한 성적 자기 결정능력 척도를 김연주(2006)가 재구성한 척도를 경도 지적장애 성인에게 적합하게 수정한 후 사용하였다. 자료분석은 집단 간 차이를 알아보기 위해 반복측정 변량분석을 실시하였다. 그 결과, 성적 자기결정 집단미술치료 프로그램은 지적장애 성인의 성적 자기결정능력 및 하위요인(성 자기인식 및 성적 권리, 성적 자기가치존중, 성적 자기표현, 성적 상대존중과 거부, 성적 행동)에서 긍정적인 효과를 미치는 것으로 나타났다. 이를 통해, 성적 자기결정 집단미술치료 프로그램은 지적장애 성인의 성적 자기결정 능력 증진에 효과적임을 알 수 있었다. This study is designed to find what effect a sexual self-determination group art therapy program has on the sexual self-determination ability for adults with intellectual disabilities. Twenty four adults with intellectual disabilities in D City who consented(or whose guardians consented) to the purpose of this study were divided into the experimental group of 12 and the control group of 12. The research was conducted in a total of 12 sessions from January 20, 2016 to February 26, 2016 with two sessions performed per week and with each session taking 60 minutes. The research tool was, the scale of sexual self-determination for the general youth prepared by Kang Dul-Soon(2005), which was then properly amended by Kim Yeon-Ju to be applied to the adults having light intellectual disabilities. Repeated measure ANOVA was employed to examine the differences between the two groups. Sexual self-determination group art therapy program had a positive effect on sexual self-determination and all the sub-factors(sexual self-awareness and sexual rights, sexual self-respect, sexual self-expression, respect and refusal of sexual partner, and sexual behavior) for the adults having intellectual disabilities. This study indicates that the sexual self-determination group art therapy program is effective in improving the sexual self-determination ability for adults having intellectual disabilities.

자기결정권에 관한 헌법재판소 판례 분석

이금옥 전북대학교 동북아법연구소 2021 동북아법연구 Vol.15 No.2

자기결정권에 관한 헌법재판소의 판례들은 자기결정권을 기본권의 하나로써 적극적으로 보 호하고자 하는 취지라는 점에서 긍정적으로 평가할 수 있다. 하지만 자기결정권의 도출 근거에 있어서는 그 결정들이 일관되지 못하고 있고, 이를 설득력 있게 논증하지도 못하고 있다. 예컨 대, 성적 자기결정권의 근거를 이전의 합헌결정에서는 헌법 제10조에서 찾았지만, 그 후 위헌결 정에서는 헌법 제10조와 제17조에서 도출하고 있다. 판례가 변경되면서 기본권의 도출 근거가 달라졌음에도 그 이유를 명확히 밝히고 있지 않다. 또한 혼인의 자유와 임신과 출산 여부에 관한 자기결정권이 여성의 중요하고 내밀한 사적 영역임에도 헌법 제17조를 언급함이 없이 헌법 제10조에서만 그 근거를 찾고 있다. 이 경우에도 헌법 제10조와 제17조에서 그 근거를 찾아야 한다고 본다. 헌법재판소가 소비자의 자기결정권에 관한 자도소주구입명령제도와 전동킥보드 사건 등에서 는 헌법 제10조의 행복추구권에서 파생된 것으로 보았으나, 국민건강보험법 사건에서는 헌법 제10조 전체를 근거로 들고 있을 뿐 그 관계를 상세하게 설명하고 있지 않다. 소비자의 자기결정 권은 소비자의 자유로운 상품선택을 포함한 소비생활 영역 또한 사생활의 중요한 영역이라고 볼 수 있으므로 헌법 제10조보다는 헌법 제17조에 따라 보장된다고 해석하는 것이 우리 헌법체 계상 더 적합하다고 본다. 최근 헌법재판소는 ‘국적이탈의 자유’의 개념에는 ‘국적선택에 대한 자기결정권’이 전제되어 있으므로 국적선택에 대한 자기결정권을 분리하여 따로 살펴볼 실익은 없다고 보아 헌법적 근거 를 언급하고 있지 않다. 그러나 국적을 이탈하는 자유는 거주⋅이전의 자유와는 그 성질도 다를 뿐만 아니라 그 본질상 헌법 제10조에서 도출되는 것으로 보아야만 국적선택에 대한 자기결정권의 논리적 근거에도 부합한다고 본다. 결국 자기결정권의 대상이 어떠한 사항인가에 따라 헌법 상 도출 근거가 달라질 수 있으므로 헌법재판소는 헌법 제10조와 제17조 등의 규범적 의미와 내용에 대한 면밀한 검토를 통해 결정을 내려야 할 것이다. The Constitutional Court's precedents on the right to self-determination can be evaluated positively in that it is intended to actively protect the right to self-determination as one of the basic rights. However, the decisions are inconsistent with the basis for deriving the right to self-determination, and they are not convincingly argued. For example, the basis for the right to sexual self-determination was found in Article 10 of the Constitution in the previous constitutional decision, but subsequent unconstitutional decisions are derived from Articles 10 and 17 of the Constitution. Although the basis for deriving basic rights has changed as precedents have changed, the reason is not clearly stated. In addition, although the freedom of marriage and the right to self-determination on pregnancy and childbirth are important and intimate private areas of women, only Article 10 of the Constitution is looking for the basis without mentioning Article 17 of the Constitution. Even in this case, it is considered that the grounds should be found in Articles 10 and 17 of the Constitution. The Constitutional Court considered that the self-determination order system and electric kickboard cases derived from the right to pursue happiness under Article 10 of the Constitution, but the National Health Insurance Act only uses Article 10 of the Constitution as a basis and does not explain the relationship in detail. Consumers' right to self-determination can be seen as an important area of privacy, including consumers' free choice of products, so it is more appropriate to interpret that it is guaranteed under Article 17 of the Constitution than Article 10 of the Constitution. Recently, the Constitutional Court has not mentioned the constitutional basis, considering that the concept of ‘freedom of nationality’ presupposes ‘self-determination of nationality choice,’ so there is no benefit in separating the right to self-determination of nationality selection. However, freedom to deviate from nationality is not only different in nature from freedom of residence and transfer, but in nature, it is considered to be consistent with the logical basis for the right to self-determination of nationality selection. In the end, the basis for the constitution's derivation may vary depending on what the subject of the right to self-determination is, so the Constitutional Court should make a decision through a close review of the normative meaning and contents of Articles 10 and 17 of the Constitution.