개정형법상 강간죄의 객체 및 행위태양의 변경가능 여하

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.