성전환자에 대한 성별정정 허가 사건의 법리적 검토 ― 대법원 2006. 6. 22.자 2004스42 전원합의체 결정과 2011. 9. 2.자 2009스117 결정을 중심으로 ―

Abstract

The Supreme Court of Korea rendered two decisions on the sex correction of transsexual, decision no. 2004se42, dated June 22, 2006. and decision no. 2009se117, dated September 2, 2011. This paper focuses on the legal issues from these two decisions. The Supreme Court of Korea rules the sex correction of transsexual is approved in our legal system regardless of the absence of the law, because the value of the basic human rights or the transsexuals should come first, thus the protection of them is by far important than the feeling of other people or a vague idea of public interest. The Supreme Court emphasizes on the judicial activism. But regrettably, the legislation of transsexual has not been completed despite of time consuming effort and moreover related legal issues are not solved or worse, legal issues appear to be overwhelmed by the strong voice advocating judicial activism. The basic rights of the minority including transsexuals cannot be neglected and government should do its best to protect them. But the necessity and imperativeness is one thing and legal ground is another. The existing theory about article 104 of Family Relation Registration Law can not legally match with the transsexual issue. This author tries to show examples of such mismatch or confusion and make suggestion to solve the problem. The ultimate solution is legislation, but research and reasoning needs to be continued at this moment.