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개정형법상 강간죄의 객체 및 행위태양의 변경가능 여하open accessA Study on objects and type of rape by Amendment Criminal Code

Other Titles
A Study on objects and type of rape by Amendment Criminal Code
Authors
이경열
Issue Date
Jul-2014
Publisher
한국비교형사법학회
Keywords
강간죄; 강제추행죄; 성전환자; 간음; 유사성교행위; 성적 자기결정권; Rape; Indecent act by compulsion; Transsexual; Adultery; Imitative rape; sexual self-determination
Citation
비교형사법연구, v.16, no.1, pp 23 - 50
Pages
28
Journal Title
비교형사법연구
Volume
16
Number
1
Start Page
23
End Page
50
URI
https://scholarworks.sookmyung.ac.kr/handle/2020.sw.sookmyung/5912
DOI
10.23894/kjccl.2014.16.1.002
ISSN
1598-091X
Abstract
Legal status of transsexuals has changed as social perception toward gender changed and medical technologies developed. The Supreme Court's judgement in 2009 (2009Do3580), reversing the judgement in 1996(1996Do791), concluded that a transsexual can be the object of rape. Since the judgement in 2009 transsexuals can be protected by criminal law. Meanwhile, Article 297 in criminal law revised in December, 2012 changed the object of rape from “women” to “person”, which includes not only a transsexual but also a male person as the object of rape. Regardless of legal gender, now, transsexual can be always the object of rape, which is surely welcomed. The revised Article 297, however, conflicts with the newly established Article 297-2 which regulates “imitative rape”. A person who raped a transsexual shall be punished by Article 297-2 of “imitative rape” as well as by Article 297 of “rape.”In order to solve this conflict, criminal act regulated in Article 297-2 should be sub-divided into two types: one is quasi-rape coming close to rape defined in Article 297, the other is an imitative rape between rape in Article 297 and indecent act by compulsion in Article 298. By this sub-division, a person who raped transsexual shall be punished by same legal penalty regardless he committed the crime of “rape” in Article 297 or “inserting his/her sexual organ into another's bodily part (excluding a genital organ)” in Article 297-2. This solution accords with feelings and logic of law.
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