준강간 불능미수 ― 대법원 2019. 3. 28. 선고 2018도16002 전원합의체 판결 (인정된 죄명: 준강간미수, 변경된 죄명: 준강간) ―

Abstract

This essay studies the decision of Korean Supreme Court in the year of 2019, the en banc Decision 2018Do16002, which for the first time provides ruling on the issue of impossible attempt of rape by intoxication. According to the article Article 27 of the Korean Criminal Act, even though the occurrence of a crime is impossible because of the means adopted for the commission of the crime or because of mistake of objects, the punishment shall be imposed if there has been a resulting danger, but the punishment may be mitigated or remitted. According to the Article 297 of the Act, a person who has sexual intercourse with another or commits an indecent act on another by taking advantage of the other’s condition of unconsciousness or inability to resist shall be punished in accordance with Article 297(Rape). The ruling of en banc Decision 2018Do16002 is that even if the victim was not in a state of unconsciousness or inability to resist, if the defendant made mistakenly recognized the victim was in such state, the defendant committed impossible attempt, which is to be punishable due to its danger of violating the victim’s right to self-determination in sexual matters.