알코올 블랙아웃과 ‘심신상실’

• 영문명: Alcohol induced Blackout and ‘Mental Loss’
• 발행기관: 한국형사판례연구회
• 저자명: 김성돈(Kim, Seong Don)
• 간행물 정보: 『형사판례연구』형사판례연구 제29권, 119~165쪽, 전체 47쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2021.06.30

영문 초록

In medical terms, alcohol blackout is defined as a ex-post failure to form memories, but without impairment in the cognitive function or state of consciousness of the actor at the time of the act-just as normal. The trial court of the target judgment made decision that the victim s condition did not correspond to the condition of the victim s mental loss or inability to protest, as the victim s statement that she could not remember because she was drunk at the time of being victimized. However, the Supreme Court of Korea said that if alcohol blackout was a problem for a victim, it should not be based solely on the statements of the victim and the accused, or based solely on a fragmentary observations of the victim s condition to determine whether the victim was in a state of mental loss or inability to protest. Rather, it was taken as a starting point that a comprehensive judgment should be followed with various data to confirm how much the victim s state of consciousness and cognitive function were affected by alcohol. Accordingly, the Supreme Court has come to the conclusion that there is plenty of room to assume that the victim was in a state of mental loss, such as falling asleep from alcohol when the accused was committing the crime. This article affirms that the Supreme Court s conclusions are based on a comprehensive(or zoom-out) approach instead of an approach that only adheres to the medical definition of alcohol blackout. This is because alcohol blackout does not only mean failure of memory formation, but encompasses a wide spectrum, including impairments in cognitive function or behavior control ability, up to a state of ‘passing out’. In addition, this article analyzed how the Supreme Court understands the concept of mental loss in applying the alcohol blackout case to the requirements of quasi-forced sexual molestation in criminal law, according to a comprehensive approach, and has made and used the relevant legal principles and case formulas. Furthermore, by critically reviewing the concept of mental loss that the Supreme Court is taking as a starting point, the case formula, and the comprehensive judgment method, we proposed interpretive supplementation and legislative improvements to ensure that they can continue to be used without compromising legal stability.

목차

【대상판결】 대법원 2021.2.4. 선고 2018도9781 판결

1. 공소사실의 요지

2. 원심(수원지방법원 2018. 5. 29. 선고 2018노906 판결)의 판단

3. 대법원의 판단

【평석】

Ⅰ. 들어가는 말

Ⅱ. 대상판결의 법리 및 사례공식과 문제제기

Ⅲ. 법리: 심신상실 개념과 항거불능 개념의 해석

Ⅳ. 법리 또는 개념의 포섭 ․ 적용

Ⅴ. 대상판결의 의의와 전망

키워드

알코올 블랙아웃 패싱아웃 심신상실 항거불능 준강제추행죄 alcohol Black out passing out mental loss inability to protest quasi-forced sexual molestation