초록 ▼

I. 서론
1. 연구의 필요성 및 목적
간통죄는 기혼여성의 성을 통제하기 위한 수단으로 활용되어 왔다. 그러나 남녀평등처벌주의가 적용된 이후에는 오히려 여성의 보호를 위하여 간통죄 존치가 필요하다는 주장이 나타났다. 사회적, 경제적 약자로서의 여성보호에 대한 기대와 더불어 일부일처주의 혼인제도의 유지, 부부간 성적 성실의무 확보, 간통으로 인한 사회적 해악의 사전 예방 등은 간통죄를 옹호하는 주된 이유로 제시되었다. 이에 대하여 간통죄에 부정적인 입장은 개인의 내밀한 성적 문제에 형법이 개입하는 것이 타당하지 않다고 대응

I. 서론
1. 연구의 필요성 및 목적
간통죄는 기혼여성의 성을 통제하기 위한 수단으로 활용되어 왔다. 그러나 남녀평등처벌주의가 적용된 이후에는 오히려 여성의 보호를 위하여 간통죄 존치가 필요하다는 주장이 나타났다. 사회적, 경제적 약자로서의 여성보호에 대한 기대와 더불어 일부일처주의 혼인제도의 유지, 부부간 성적 성실의무 확보, 간통으로 인한 사회적 해악의 사전 예방 등은 간통죄를 옹호하는 주된 이유로 제시되었다. 이에 대하여 간통죄에 부정적인 입장은 개인의 내밀한 성적 문제에 형법이 개입하는 것이 타당하지 않다고 대응하였다.
더불어 간통죄가 여성의 보호에 필요하다는 주장에 대해서도 반론이 있다.
‘여성보호의 필요성’ 논변은 여성이 상대적으로 경제적 지위가 취약하고 이혼의 부정적 결과에 더 많이 노출되기 때문에 간통죄를 두어 이혼을 예방하여야 한다는 논리인데, 오히려 같은 이유로 여성은 남성에 비해 간통한 상대 배우자를 고소하고 이혼을 선택하기가 더욱 어렵다는 것이다. 이 같은 논의의 대립 속에서 우리 사회는 성문화와 가족관계, 성별관계는 지속적인 변화를 경험하였고 그에 따라 간통과 간통죄에 대한 인식, 태도, 간통 사례의 법적 판단에도 변화가 생겨나고 있다. 이러한 상황에서 본 연구는 간통죄의 의미와 간통죄에 대한 일반인의 태도를 살펴보고 간통 행위에 대한 범죄화의 실효성과 정당성을 재평가하고자 한다.

Abstract ▼

Compared to other sectors, legislations on women and family-related issues have shown a quite faster development with various legislative measures achieved to enhance gender equality policies in Korea. Nevertheless, there is no significant change in the reality that women face every day. Moreover, t

Compared to other sectors, legislations on women and family-related issues have shown a quite faster development with various legislative measures achieved to enhance gender equality policies in Korea. Nevertheless, there is no significant change in the reality that women face every day. Moreover, the job insecurity and economic disparity of women are worsening and women live in a society where sexual violence and harassment are prevailing. Such disparity between the law and the reality, inversely, demonstrates why legislations and institutions are critical in improving the reality. Here comes the imperative to create appropriate structures enabling constant and systemic efforts to close the gap between the law and the reality. To this end, Korean Women’s Development Institute has promoted researches with the aim of strengthening the effectiveness of women and family-related legislations by providing gender-sensitive support to the legislative activities in the National Assembly including developing relevant new bills and amendments for the ten years since 2013.
The in-depth analysis on the crime of adultery focuses on reevaluating the effectiveness and legitimacy of criminalizing adultery by reviewing the significance of the crime of adultery as well as the general public’s perception and attitude toward it in changing social environment.
With this in mind, the study takes the normative analysis approach in reviewing the history of the crime and the current legislative structures as well as the Constitutional Court’s opinions on the constitutionality and unconstitutionality of the crime by examining the four decisions of the Constitutional Court finding the provision of the crime of adultery constitutional. Since 1990, the Constitutional Court has decided the crime of adultery constitutional four times. However, the judges who accepted the opinion that the crime was compatible with the Constitution cannot be understood as supporting its legitimacy. In practice, they pointed out the international trend of abolishing similar crimes, the changing legal perception of the people on gender issues, the abuses of the crime, and the weakening regulatory power of the crime and recommended the lawmakers to take steps of legal improvement, taking account of comprehensive factors such as social consensus and people’s legal perception, while concluding the crime of adultery not contrary to the Constitution as the crime’s criminal regulation falls under the discretion of legislators. Moreover, given that more judges found the provision incompatible with the Constitution in the most recent fourth decision, there is possibility that the court may have the different conclusion of unconstitutional or incompatible with the Constitution in the pending fifth decision.
Second, the Institute conducted a survey for 2,000 men and women aged 19 and over on their experience of and attitude toward adultery in order to see how the crime of adultery is perceived among the general public. The results showed that the experience of adultery varied significantly by gender. There was also qualitative difference in men and women’s experience of adultery: more men answered they had been involved in adultery relations during marriage while women experienced adultery before getting married or after ending their marital status. In terms of attitude to adultery, the degree of acceptance was varied by in which situation it took place. Adultery committed when a party or both parties’had good relations with their spouse received a lower degree of acceptance, while that committed when the relations with their spouse were not good had a higher degree of acceptance. In this regard, the degree of acceptance to extramarital affairs is likely to be varied not by the legal marital status of the person but the actual status of the person’s relationship with his or her spouse. On the other hand, compared to previous researches, the survey showed that the public opinion to maintain the crime of adultery decreased, but the drop was slight, while the number of respondents to think the crime of adultery was necessary was still higher than that of people who answered it should be abolished.
The effectiveness of the crime of adultery could be assumed from the people’s respond on their spouse’s adultery. Considering that the majority answered adultery except prostitution “can never be accepted in any case,” the attitude not to allow adultery does not always mean the person wants criminal punishment for his or her spouse on the charge of adultery. Moreover, the study reviewed the difference between the public perception or attitude and the actual cases convicted of the crime of adultery, and its implication by analyzing the statistics of the police, the prosecution, and the court regarding the criminal cases of adultery. The result shows that the number of cases has sharply dropped and unlike the past practices that most of them were arrested, convicted and sentenced to imprisonment, the arrest and conviction rate has fall significantly and the majority have been suspended, implying the weakening regulatory power of the crime. In addition, more adulterers were decided as non-indictment disposal due to no arraignment right than adulteresses. It means the cases when a wife drops charges against her husband’s adultery are more than the cases when a husband withdraws charges against his wife. As a more permissive social atmosphere to adultery of married men than that of married women influences in charging and prosecuting the cases of adultery, the criminal charge is more strictly applied to women, though there are more adulterers than adulteresses.
Last, considering the above mentioned issues together, various issues on the crime of adultery such as the justification of criminal intervention, the general preventive effect, the effectiveness of family protection function and ‘women protection function.’
Regarding the justification of criminal intervention, while criminal regulations may be necessary sometimes even in privacy area, whether it is legitimate to regulate adultery with criminal sanction needs to be reviewed. Adultery is sexual relations between adults based on agreement without any force such as violence or threat. Adultery in itself does not violate other’s legal interest. Resorting to criminal penalties in order to protect sound sexual morality and enforce the duty of good faith in sexual relations of couples is not only incompatible with the supplementary nature of criminal codes, but also ignoring its role as a last resort. Moreover, for the crime of adultery to have the general preventive function, there should be a concrete predictability that adultery must be punished. However, the number of cases accused of adultery is rapidly dropping and a significant number of cases end up with non-indictment disposal or dismissal of prosecution due to the withdrawal of charges during investigation or judicial proceedings. The survey results that not many people have expectations for the crime to prevent extramarital relations also reflect the negative public opinion to the general preventive function of the crime. Finally, the crime of adultery is an offense subject to the other spouse’s complaint and it prerequisites divorce. Therefore, when accusing a spouse of committing adultery, there is already no family to ‘protect.’ In addition, the process verifying the establishment of adultery is incompatible with the protection of family and the broken trust due to adultery is difficult to be restored through threats of criminal sanction.
In this regard, the study suggests the following ways to improve legal approaches to adultery. Resorting to criminal sanctions to protect sound sexual morality and the duty of good faith in couple’s sexual relations may be incompatible with the supplementary nature of criminal codes and the crime of adultery is hardly an effective measure to prevent adultery or protect marriages or women. It is true that some may concern the abolishment of the crime results in increased adulteries and subsequently more victims. In fact a significant number of people have such concerns. However, as seen in other countries’ experiences after abolishing similar criminal charges, such arguments are not very convincing and at present criminalizing adultery cannot provide reparation to damage suffered from adultery. The issue of providing remedies after the abolishment of adultery criminal charge may be resolved within other judicial frame such as the applicable civil laws on alimony, right to foster, and compensation after divorce.
On the other hand, some people advocate for introducing monetary penalty for the crime as the current imprisonment-oriented approaches are excessive though the charge itself needs to be maintained. Considering that monetary penalty is a kind of criminal punishment, it may be justified with the precondition that adultery should be subject to criminal sanction. However, the effectiveness of monetary penalty should be reviewed as a married couple has a nature of economic community, though accepting the need for criminal punishment.