Sexual violence, which has been the main target of the struggle against the ‘Me-too movement’ is called "sexual violence in power relationships" because the means of force exercise are not tangible, but intangible control over the victims of the group's internal power relations. However, the current criminal laws limit the possibility of criminal punishment of sexual violence cases in power relationships, which are raised through unsightly campaigns, due to the fact that the means of sexual crimes, such as rape, are limited to assault, intimidation, deception and power, and narrow interpretation of the power to suppress the freedom of the other party.
In response, bills has been proposed in the 20th National Assembly to add requirements for nonconsent, such as the creation of new or rape sections. These kinds of revision could be a paradigm shift within the current system of sexual violence in that it would change the concept of sexual violence under the law.
There was a perception that the law on sexual crimes, which had established purification as the rights of sexual violence in law, should be changed to focus on the violation of individual sexual self-determination rights. Criticizing the fact that criminal justice system defined only a portion of non-consensual sex that infringes sexual self-determination as a crime in the early 1990s, it has been suggested that the Special Act on Sexual Violence should create an offence of nonconsent sexual violence. These discussions were based on feminism studies at the time, which insisted the concept of sexual violence including rape should be redefined by focused on not the other side's resistance but lack of consent to punish the violation of one’s rights of sexual self-determination. Since the introduction of the new law on the nonconsent sexual violence was raised, the discussion was held mainly in the legal sciences, including the discussion on the criminal justice system and structure of sexual crimes to the mid-2000s. Based on such discussions, the coalition of women's activists was established in 2006 to develop a revised bill on the Criminal Law, which completely changed the structure of the laws related to sexual violence, including the requirements of nonconsent. In 2007, the bill was submitted in the 17th National Assembly but was abolished.
In terms of international human rights, UN CEDAW General Recommendation 35 specifies, as a general legislative measure, "the definition of sexual crimes, including marital and acquaintance or date rape, is based on the lack of freely given consent and takes into account coercive circumstances(para. 29⒠)".
Accordingly, on March 12, 2018 the CEDAW Commission's recommendation in the field of violence against women under the Korean government pointed out that "(a) amendment to Article 297 of the Criminal Act will define rape based on lack of free consent of victims, and in particular criminalize spousal rape."
Therefore, it is necessary to review the need to change the basic types of sexual crimes in legal system, which reflect sexual self-determination rights as protective rights by criminal law,
In this study, we are going to attempt to review the introduction of the requirements of nonconsent as a basic type of sexual self-determination rights violation, and to analyze the need or substitution of these requirements under the Criminal Code and the Sexual Violence Punishment Act. By examining the elements of sexual violence cases that are currently excluded from applying the laws due to limitations in the interpretation of requirements for sexual violence laws, as well as systematic analysis of the requirements for the means of sexual violence such as assault, threat and force and nonconsent, we can carefully examine whether the composition requirements of sexual violence acts under the current criminal law should be revised.