性別訂正 許可가 있기 전의 性轉換者의 法的 地位 —대상판결: 대법원 2009.9.10.선고 2009도3580 판결—

Abstract

Under the Korean Criminal Act, the crime of rape is constituted only when the victim is female. Then, can an MTF(male-to-female) transsexual person be a victim of the crime of rape? The decision of the Korean Supreme Court delivered on September 10, 2009 declares in the positive. This paper analyzes the above Supreme Court decision. With respect to the legal status of the transsexuals, two(2) precedents of the Korean Supreme Court currently exist. The decision of June 11, 1996 was rendered also in a case pertaining to rape. The facts of this 1996 case were much similar to the facts of the 2009 decision. However, in the 1996 case, the defendant was held not guilty of rape, as the victim, who was an MTF transsexual, was not deemed to be female by the Court. Although the Court did not exclude the possibility that in some cases MTF transsexuals could be found to be of female gender in the legal sense, the conditions or prerequisites for such finding were not clearly indicated. Next, the decision of the Supreme Court of June 22, 2006(en banc) declared that a transsexual person could change his or her sex recorded in the family register to the opposite sex upon permission of the court. The problem of the 2009 decision is that, here, there was no such permission of the court and the victim did not change the sex recorded in the family register, prior to the commission of the sexual offense at issue. However, the holding of the 2006 decision explicitly states that the permission of the court or the change of sex in the family register merely has prospective effect. In this aspect, the 2009 decision is not consistent with the 2006 decision. In my opinion, the crime of rape against an MTF transsexual may only be constituted subsequent to the permission of the court for the change of the sex in the family register. Otherwise, legal certainty, which is indispensable particularly in the realm of the criminal law, may not be attained.