혼인빙자간음죄 위헌론 소고 = The Unconstitutionality of the Crime of Sexual Intercourse under Pretence of Marriage

다국어 초록 (Multilingual Abstract)

The Article 304 of the Korean Penal Code provides: “A person who induces a female not habitually immoral to engage in sexual intercourse under pretence of marriage or through other fraudulent means, shall be punished by imprisonment for not more than two years or by a fine not exceeding five million won." In 1992 the Ministry of Justice took off the crime in its draft to revise the Code for it is a moralist legislation. The draft could not pass in the National Assembly. In 2002 the 7-to-2 majority opinion of the Constitutional Court held the crime is constitutional. This Article argues that the Article 304 is a product of male-centered patriarchical culture of sex in 1950s and does not match the contemporary Korea culture of sex any more. It also argues that the Article 304 is unconstitutional for it criminalizes a behavior that does not deserve to criminal sanction but moral blame or civil sanction; it denies female's ability to exercise a right to sexual intercourse under the name of the protection of a female not habitually immoral; it discriminates a female who enjoys free sex with multiple partners and gives her a label of “habitually immoral"; the term of “habitually immoral" is too vague to understand its exact meaning.

목차 (Table of Contents)

• Ⅰ. 들어가는 말
• Ⅱ. 21세기 현대 한국 시민의 성문화와의 충돌
• Ⅲ. 여성의 성적 자기결정권 침해 여부
• Ⅳ. 과잉금지의 원칙 위배
• Ⅴ. 평등원칙의 위배
• Ⅵ. 입법적 결단 이전 위헌무효의 필요성
• Ⅶ. 맺음말
• Abstract

참고문헌 (Reference)

1 법무부, "형법개정법률안 제안이유서"

2 이정원, "형법각론"

3 H.L.A. Hart, "Law, Liberty, and Morality 19-20"

4 Joel Feinberg, "Harmless Wrong-doing" 4 : 17-, 1984