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The review on the “Special Act on the Punishment of Sexual Crimes thereof”(7-1)

  • DONG-A LAW REVIEW
  • 2012, (54), pp.387-416
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

Sang-Ho Kim 1

1동아대학교

Accredited

ABSTRACT

In Korea there are many criminal special law is not realized well the spirit of constitutional law and rule of law. It seems hard to avoid a criticism that National Assembly made a rash decision of passing the amendment of Act on the punishment of sexual crimes thereof in october 28.2011. That Act have neither procedual righteousness nor substancial righteousness. Here I want to discuss problems in relation to article 7-1 “Act of Sexual Crimes” and to consider reform measures. The first, girl under 13 as the object of act should be changed into girl under 11 because of early maturity of sex and early first-menses of girl. That girl over 12 or 11 is able to decide on the sexual matter is realistic and scientific. Generally puberty of girl is 2years younger than puberty of boy. For example, if child 14 commits rape against girl 12, Rape offenders and rape victims in relation to sexual maturity is similar. This case should not be punished by the criminal special law but should be punished by the general criminal law. The second, a person commits rape against girl under 13 in existing law is liable to imprisonment for life or to imprisonment over 10 years. Although taking account of opinion and emotion of peoples, the punishment is too heavy. It is against the human dignity in constitutional law and rule of responsibility. Taking into account sexual self decision of child and responsibility of offender etc., that punishment should be over 5 years imprisonment may be proper. But the scope of prison term is too wide because maximum prison term has increased in twice. In fact over 5 years imprisonment is 5-30 years. This is against the principle of No Crime and Punishment without Law. According to the attentative plan of the ministry of justice, rape in criminal law(over 3 years imprisonment; in existing law) is 3-20 years imprisonment. This plan is able to make contribution to legal stability but make no contribution to the principle of relative equality. Therefore it is necessary that should be narrow width between minimum prison term and maximum prison term.

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