성매매의 비범죄화를 위한 규범적 고찰 = A Normative Study for the Decriminalization of the Prostitution

다국어 초록 (Multilingual Abstract)

Amnesty International recently put forth a proposal to recognize prostitution as a human right; in direct contrast, the Korean Women`s Association United advocates the Nordic model of punishing the buyer. This thesis deals with three different models of legal treatment of consented prostitution: the current, rigid model of punishing both the buyer and the seller; the ``Nordic Model`` (punishing only the purchaser); and general decriminalization. Methodically, this paper is normative, focusing on constitutional rights related to the punishment of prostitution and evaluating the justifications for it. I examine the rights of sexual self-determination, privacy, and right to work. I argue that the right of privacy must be protected even when the private act contains a commercial motive, since regulation on the motive inevitably leads to control of the private act. A consented prostitution is an exercise of the right of self-determination, so unwanted protection could not be properly deemed as the ``right to human dignity.`` It is true that the consent of the prostituting woman must be viewed in light of the unequal bargaining power; but I propose that this should not be a basis upon which to deny her freedom of will. And prostitution is work as much as household chores are labor which should be protected by the right of job and that of labor.. Discussing the justifiability of criminal punishment, I first argue that the claimed reason of protecting the ``autonomy of human dignity`` cannot be supported since it ignores the right of self-determination. Secondly, if the purpose is the ``normalization of the abnormal industrial structure,`` criminalization as a method is inadequate; same conclusion applies to the stated goal of ``equality for all women.`` The harm caused by criminalization to the women is unreasonable in light of marginal benefits, and legal sanctions are far from necessary. The ``Nordic Model`` fails for similar reasons. Thus, the only justifiable treatment of consented prostitution, in accordance with constitutional principles, is full decriminalization of prostitution.