미국 형법상 불능미수의 가벌성

Abstract

Recently there has been a growing debate in Korea on criminality of impossible attempts which is regulated by the Criminal Code of Korea Article 27. Several well written articles on this topic have already been published. However these articles primarily compare the German and Japanese laws of criminal attempt with the Criminal Code of Korea. Thus, the author of this article strives to expand the boundaries of the debate by introducing to a Korean audience the court opinions and theories of American criminal law on impossible attempts. Under US law, impossibility may serve as a defense to criminal attempt. There is, however, a distinction between factual impossibility and legal impossibility. According to US case law, legal impossibility is a defense to a charge of attempt but factual impossibility is not. Thus factual impossibility is rarely a defense. Factual impossibility is one in which the defendant is unable to accomplish what he intends because of some facts unknown to him. An example is a defendant that fires a shot at a hole in the roof, believing his victim to be there, but the attempted crime fails because the victim who had been on the roof only moments before, is no longer there at the time of the attempt. Accordingly, the defendant would be found guilty for attempted murder. Legal impossibility is considered a valid defense to criminal attempt. If the defendant completes all of his intended acts, but fails to fulfill a requisite element of the crime, this is considered to be a legal impossibility. For example, a court would hold that a defendant is not guilty of attempted bribery of a juror when he offered a bribe to a man he mistakenly believed to be a juror. Another example is when a defendant who engages in conduct, thinking it is a crime when, in fact, there is no law making it a crime. The defendant could not be convicted of an attempt in such cases. Facts and opinions of US courts cases related to impossible attempts are very similar to those in Korean court rulings. However, US legal theory of criminal attempt and the defense of impossibility is primarily based on subjectivism. The drafters of the Criminal Code of Korea took an objectivist approach, thinking that even when the occurrence of a crime is impossible, if there is any objective danger, the defendant may still be convicted of criminal attempt. Under the Criminal Code of Korea Article 27, in case of impossible attempts, punishment is imposed if there is resulting danger. Article 27 of Criminal Code of Korea is very unique legislation compared to German law and the US case law theory of impossible attempts, and it narrows somewhat the liability of a person who makes an impossible attempt. Thus, the author of this article argues that judges and scholars should understand the uniqueness of Article 27, and positively interpret and apply it as necessary to properly adjudicate impossible attempt cases.