준강간죄의 불능미수 성립요건에 대한 비판적 고찰

Abstract

The Supreme Court's all-inclusive ruling sentenced in 2019 explicitly recognized the Attempted Incompetence of Quasi-rape crimes. However, if the Defendant consistently denied the intention of Quasi-rape, it would not have been easy to admit the intention of Quasi-rape. Since the intentional recognition of Quasi-rape is an important subjective component that determines whether or not an Attempted Quasi-rape is established, the court should strictly judge whether or not the Quasi-rape is intentional. In the Attempted Incompetence, the time to determine the 'Impossibility of Consequence' should be regarded as the end of the execution act, not the start of the execution. If it is judged based on the end of the execution act, it can be more concisely determined based on the circumstances so far. Of course, if the Victim wasn't in a state of mental or physical loss or inability to resist from the time of the execution of Quasi-rape to the end of the execution, as in the case of the judgment above, it should be considered impossible to result in Quasi-rape. The subject of Quasi-rape crime is 'a person in a state of mental or physical loss or inability to resist'. If the Defendant recognized that the Victim was in a state of mental or physical loss or inability to resist and committed adultery using such a state, but the Victim was not actually in a state of mental or physical loss or inability to resist, it can be considered that there was a Mistake in the Means or Target of execution. In the Attempted Incompetence, the 'Impossibility of Consequence' is a factual and natural concept and is distinguished from the concept of 'Risk' that is problematic from a normative and evaluative point of view. It is considerable that the 'Risk' of Attempted Incompetence is judged normatively according to general rules of experience based on circumstances that the general public could recognize. In the case of the judgment above, it is judged that there was a ‘Risk’ of Quasi-rape consequences according to any theory on the 'Risk' of Attempted Incompetence. In the case of the above judgment, it is necessary to review the problem of Mistake of Fact because the contents recognized by the Defendant and objectively occurred, but the theory of Mistake of Fact should be viewed as a theory to determine whether the intention of the recognized facts can be deliberately. Otherwise, even if all of the requirements for Attempted Incompetence of Quasi-rape crimes are met for the recognized facts, there may be an irrationality to be judged innocent. In the case of an Attempted Incompetence of Quasi-rape, it is considerable to first determine whether or not the Attempted Incompetence of Quasi-rape is met, regardless of the theory of Mistake of Fact. In conclusion, in the case of the judgment above, it is reasonable to assume that an Attempted Incompetence of Quasi-rape crime is established, as in the conclusion of the Majority opinion. For reference, in the case of 'surprise molestation' or 'surprise pseudo-rape', the crime of forcible molestation or pseudo-rape requires 'awareness of exerting a tangible force of molestation or pseudo-rape against a person's will', which is sufficient to recognize intent, so it is judged that 'forcible molestation' or 'pseudo-rape' can also be established in cases where 'attempted quasi-forcible molestation' or 'attempted quasi-rape' is recognized. By the same logic, if 'surprise rape' is recognized, it seems that 'rape' can also be established in cases where 'attempted quasi-rape' is recognized.