성형법 담론에서 섹슈얼리티의 논의지형과 한계

• 영문명: Context and Limits in the Legal Discourse about Sexuality
• 발행기관: 한국형사정책학회
• 저자명: 이호중(Lee, Ho-Joong)
• 간행물 정보: 『형사정책』刑事政策 第23卷 第1號, 337~362쪽, 전체 26쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2011.06.30

영문 초록

The crime of sexual intercourse under pretence of marriage(Article 304 of Korean Penal Code) was pronounced as ‘unconstitutional’ by Korean Constitutional Court(KCC) on the ground that it criminalized a behavior that does not deserve to criminal sanction but only moral blame. Maybe that decision would have a great influence on the debate about abolition of the crime ‘adultery’ in Korean society. This paper has interest on the issue, ‘how or in which context the discourse of sexuality which is developed in the realm of feminism can be reflected in criminal legal discourse’. The above mentioned decision of KCC is based upon legal liberalism, the characteristic of which is that each man or woman equally has the right of sexual autonomy and free sex. However, "sexuality" is neither natural, nor neutral. It is socially constructed by gender-power in our society. This context of gender-power relation should be sincerely considered in criminal legal discourse. This article argues that the right to sexual autonomy of free sex should be understood as one which is based on the democratic and equal communications. The right to sexual autonomy would be infringed not only by a 'violent' sexual act, but also by a sexual act interpreted as not-violent, but based on the gender-distorted sexuality. And so only the reason of superficial freedom or equality of free sex can not justify the abolition of the crime ‘adultery’.

목차

Ⅰ. 서론

Ⅱ. 형사법담론에서 혼인빙자간음죄와 간통죄 폐지론의 논증방식

Ⅲ. 혼인빙자간음죄와 간통죄의 영역에서 들여다본 섹슈 얼리티 - 보수적 성담론이 작용하는 맥락

Ⅳ. 자유주의 형법담론의 한계를 넘어서

Ⅴ. 맺음말

참고문헌

키워드

섹슈얼리티 성형법 혼인빙자간음죄 간통죄 성적 자기결정권 sexuality right to sexual autonomy adultery crime of sexual intercourse under pretence of marriage