2009. 9. 10. the Supreme Court of Korea made judgement that a transsexual person could be the object of rape, while the Supreme Court did not admitted it 13 years ago. However the judgement does not seem to apply to all transsexuals persons because the Supreme Court needs several conditions to admit a transsexual person as an object of rape. It requires that ① the person should be diagnosed as transsexualism patient by a psychiatrist ② the person should take psychiatric and hormone treatment for quite a long time but no improvement ③ the person should take sex reassignment surgery and have successful external shape of opposite sex organ ④ the person should be satisfied with the new gender and under the constant gender-identity have appearance of opposite sex ⑤ the person should be recognized as a woman(man) by people around her(him) ⑥ the trans-gender identity does not affect any status of other people. But, if the Court requires all of those conditions strictly, there would be few persons who could be the object of rape. In my opinion, if the person has diagnosed as transsexualism patient and took sex reassignment surgery and there are not any intentions to be exempted from military service, she(he) could be the object of rape. Eventually, as many western countries revised the criminal code, the object of rape could cover men as well as women, and the methods of raping should include anal and oral sex.

[대상판결] 대법원 2009. 9. 10. 2009도3580호
  판결요지
  1. 강간죄의 객체인 부녀의 개념
  2. 사안에의 적용
 [관련 대법원판결(1)] 대법원 1996. 6. 11. 96도791 판결 요지
  1. 사안 개요
  2. 판결의 요지
 [관련 대법원판결(2)] 대법원 2006. 6. 22. 2004스42호 판결
  1. 사건 개요
  2. 판결 요지
 I. 문제의 제기
 II. 강간죄의 보호법익
 III. 강간죄의 행위객체 문제
 IV. 입법론적 접근
 V. 맺 음 말
 [참고문헌]
 [Abstract]

• 이주형(대법원 재판연구관, 검사) | Lee, Ju Hyung