형법 제27조(불능범)에서 “결과발생의 불가능”과 “위험성”표지의 구별기준

Abstract

The Korean Penal Code(KPC) § 27 provides that "Though an act was impossible to be completed, due to a mistake of the means by which or the object against which the act was to be committed, the act is punishable, provided that there was dangerousness. The punishments, however, may be reduced or exempted." The text of § 27, codified in 1953, is very unique, in that it is different from U.S. Model Penal Code § 5.01(1) (Definition of Attempt) “A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he: (a) purposely engages in conduct that would constitute the crime if the attendant circumstances were as he believes them to be", from the German Penal Code § 23 (3) “If the actor, due to a gross lack of comprehension, failed to realize that the attempt could not possibly lead to completion on account of the nature of the object against which or the means by which the act was to be committed, then the court can dispense with punishment or reduce the punishment in its discretion (§ 49(II))", and from the Japanese Penal Code, which does not know the impossible attempt. In Korea, so, there have been great controversies over the interpretation of the provision, especially the relationship between the “impossibility to be completed" and the “dangerousness". Some academics criticize that where an act is impossible to be realised, then it is not dangerous. So, they contend, KPC §27 is contradictory in itself. This article explores the historic background of German, Japanese, and Korean legislations, and analyses decisions of the Korean Supreme Court, including an attempted fraud case(case no. 2005do8105, decided on 2005.12.8) and an attempted murder case(case no. 2007do3687, decided on 2007.7.26). This paper suggests an appropriate understanding of the provision, in that the “impossibility of completion" stands for no “actual dangerousness" to the object, while “dangerousness" element of §27 means “potential dangerousness" for completion of the act. In this sense the provision is not contradictory, rather sets an objective limitation to public punishments.