In recent some special laws against sex-crimes, especially sexual violence crimes were enacted in Korea. Most of them go into effect now and the one is supposed to be in force before long, which regulates medical treatment against sex drive of sexual violence offenders. By the way there are many problems in these laws in the respect of legal theory and criminal or criminal law policy. First, the contents which are regulated as objects of punishment are mostly overlapping those of general criminal law. But only one thing that is characteristic and common in their regulation is imposing excessively heavy punishment, and in this sense these laws can be called ‘special’. Second, the regulation system of special laws against sex-crimes is so complex and confused that no one can grasp correctly the precise details of them, and this is even same to the experts of criminal law. The more severe problem is that this leads to the collapse of coherence of criminal law system. Third, it is wonder if such a regulation brings prevention of sex-crimes. According to the recent statistics sexual violence crimes increase more and more in spite of imposing excessively heavy punishment. Fourth, these laws were enacted rapidly with support of public opinion without wide social discussion. Hence they were made without rational arguments based on positive research and professional study besides claim of heavy punishment.
These recent laws function only as political symbolic legislation and aim at antagonistic war against sex-crimes toward community protection and crimes prevention. Furthermore, they show clear signs of change in the image on human being traditionally pervaded in criminal law, namely the one as autonomous and ethical being. Because I think that they can maintain their legitimacy only on the base of such change in the image on human being.
Criminal law has two tasks called protection function and guarantee function. These are like two sides of one coin, and therefore oppositional and antinomic each other. In modern society which man says is full of several risks threatening our survival and safety and puts overemphasis on protection task of criminal law, where should criminal law be headed? My opinion is nevertheless that the guarantee task of criminal law should be adhered as the limit of invasion through punishment, which nation is not rashly to exceed. Nowadays it is true that social complexity and risks increased more than in the past. But such risks seem to be more exaggerated systematically than they actually are. Criminal law policy based on excessively heavy punishment depends on the illusion that sex-crimes can be prevented and decreased solely by the way of putting all the responsibility of sex-crimes on offenders and isolating them from society. But this illusion makes members of a society not recognize the fact that all crimes are social pathological phenomenon. As a result it makes them not survey the problem of sexual violence from the total viewpoint. Therefore the illusion should be immediately broken.