강간피해자로서 '성전환자'의 인정 여부에 관한 검토

A Study on the transsexual as victim of rape

The article 297 of the Korean Criminal provides that only a woman is possibly raped. In relation to interpretation of 'woman', The Supreme Court(1996) was judging whether man or woman via sex chromosome. But this interpretation gave rise to confusion. In particular case, it is not easy to distinguish man from woman. For example, transsexual(MTF), tansssexual(FTM) etc. On the other hand, One of main issues in these days is the sexual minority's right to equality. Especially transsexual is treated unequally in criminal law. The criteria of judgement between male and female contain biological sex(for instance, a sex chromosome, gonadal sex, internal morphologic sex, external morphologic sex etc), psychological(mental)․social gender etc. Above all, we should recognize that psychological( mental)․social gender is much important the present state of things. Also, we have to pay due regard to such factors as often as judgement between male and female. The Supreme Court(2009) takes a this position. Most of all, for effective protection of transsexual's rights, we have to make an atmosphere where we can recognize transsexual, who exist as minor human type and live together. Therefore, revise action object of rape is reasonable that change as 'person'. In conclusion, the purpose of this writing is to consider the protection of transsexual's right to criminal law.