준강간죄의 불능미수에 대한 고찰

• 영문명: A STUDY ON IMPOSSIBLE ATTEMPT OF THE CRIME OF QUASI-RAPE
• 발행기관: 한국형사정책학회
• 저자명: 이창섭(Lee, Chang-Sup)
• 간행물 정보: 『형사정책』刑事政策 第31卷 第4號, 99~127쪽, 전체 29쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2020.01.31

영문 초록

Article 299 of the Criminal Act defines “A person who has committed adultery with another by taking advantage of his/her condition of mental defection or inability to resist” as a subject of the crime of quasi-rape. In ｢Supreme Court en banc Decision 2018Do16002 Decided March 28, 2019｣, Majority Opinion considered the object of act in the crime of quasi-rape as ‘another in a condition of mental defection or inability to resist’ and acknowledged that in the case that the defendant, mistaking the victim being not in a condition of mental defection or inability to resist for him/her being in such condition, committed adultery with him/her, the impossible attempt of the crime of quasi-rape is established. Dissenting Opinion considered the object of act in the crime of quasi-rape as ‘another’ and denied the establishment of the impossible attempt of the crime of quasi-rape in that case. However, when a certain qualification or nature of the object of act is provided on the legal elements of the crime, as in the crime of killing ascendant, a object with such a qualification or nature shall be regarded as the object of act. Since the nature of ‘another’ is expressed as ‘a condition of mental defection or inability to resist’ on the legal elements of the crime of quasi-rape, the object of act in the crime of quasi-rape is to be interpreted as ‘another in a condition of mental defection or inability to resist’. Impossible attempt of the crime of quasi-rape under Article 27 of the Criminal Act can be established, if the requirements of ‘impossibility of result’ caused by the mistake of means or objects in the committing a crime and ‘danger’ are met. The former means the impossibility of results of the legal elements of the crime judged by ex post and factual standpoint, and the latter means the hypothetical and potential danger judged by ex ante and normative standpoint. Whether there is ‘danger’ or not shall be judged by the abstract danger theory. The defendant had a mistake of object and means in the committing the crime of quasi-rape, and the defendant’s acts cannot produce the results of the crime. But ‘danger’ can be acknowledged according to the abstract danger theory. In the end, Majority Opinion many opinions is a valid opinion.

목차

Ⅰ. 머리말

Ⅱ. 대법원(2018도16002)판결의 소개

Ⅲ. ‘결과 발생의 불가능’의 해석과 판단기준

Ⅳ. ‘위험성’의 해석과 판단기준

Ⅴ. 피해자가 술에 취하여 항거불능의 상태에 있었던 사안에 대한 평가

Ⅵ. 맺음말

키워드

준강간죄의 불능미수 실행의 수단 또는 대상의 착오 결과 발생의 불가능 위험성 추상적 위험설 impossible attempt of the crime of quasi-rape mistake of means or objects in the committing a crime impossibility of result danger the abstract danger theory