형법 제305조 제2항의 비교법적 검토 - 위헌제청과 일본의 2023년 개정 형법을 소재로 - = Comparative legal review of Article 305 (2) of the Criminal Code

다국어 초록 (Multilingual Abstract)

The Korean Criminal Code treats victims of sexual violence crimes differently by age, and Article 305(1) of the Criminal Code punishes adultery and molestation of a person under the age of 13, even if no special means are used. In addition, Article 305(2) of the Criminal Code, which was introduced in 2019 in response to the Room N case that shocked society, expands the scope of punishment and protects minors between the ages of 13 and 16 by punishing adults over the age of 19, even if the sex is voluntary and consensual.
However, the basis for such punishment and protection is not clear, as the Supreme Court of Korea considers the legal interest of protecting sexual crimes against adults to be the right to sexual self-determination, while the legal interest of protecting sexual crimes against minors under the age of 13 to be the sexual protection of children. The recent unconstitutional petition and the counter-opinion written in response to it can be seen as a result of a different understanding of the protective legal interest.
In this regard, Japan amended its Criminal Code in 2023, which, like ours, criminalizes indecent assault and rape of minors between the ages of 13 and 16, with a five-year age difference. According to this, unconstitutional cases are not punished because the victim is 15 years old and the perpetrator, who is 19 years and 2 months old, is not more than 5 years old.
However, unlike Japan, where the age of adult is 18, Korea's age of adult is 19, making it difficult to introduce an age difference. However, considering that most sexual intercourse is punishable under other penalties, it would be excessive to punish voluntary consensual sexual intercourse with adolescents in the same way as rape and forced molestation.
Furthermore, the scope of the criminalized behavior is overly broad, and the relevant provisions are set forth in special laws rather than the Criminal Code. More in-depth discussions and efforts are needed to address these issues, and we look forward to the Ministry of Justice's efforts.