불능범의 중지미수에 대한 법적 효과

Abstract

As the conduct element in attempts concern with incomplete attempts, so the concept of impossibility arises in connection with criminal attempts. If there is no possibility of harm, anyone cannot be convict of crime. But it does not mean that no one can be convicted of attempting to commit a crime, conspiring, or inciting another People do incite, conspire, and attempt to committing what is no possibility of harm time to time. A person may be guilty of attempt to commit an offence even though the commission of the offence is impossible. According to Korean Criminal Code the dangerousness is the line of it, one may be punished when there is a risk. See examples of our enactment of the Criminal Code, Criminal law is emulate Germany and Japan designed. By interpreting of the Criminal Law Article 27 with analysing of opposition, and by the decision of the court below, we can draw a conclusion of classification of a punishment. According to the decision of the court, they distinguish between two cases. First “when one fail to consequences set about the implementation of the crime”, second “If there is a risk, even though the result is impossible, one is punished by attempt to commit the crime”. The clearly demonstrate a special meaning of risk. Therefore, the Criminal Law Article 27 means that one is not punished when that results is impossible if it's not dangerous, does not mean that one is punished if it’s dangerous.