준강간죄의 불능미수에 관한 비교법적 고찰

Abstract

Recently, the Supreme Court of Korea upheld the validity of criminal charge and conviction of an impossible attempt to commit quasi-rape. In the case before the Court, the defendant had committed sexual penetration thinking that the victim was drunk and unable to mentally and physically resist, but in fact, the victim was not so impaired. The majority opinion of the Supreme Court viewed the object of quasi-rape as "a person in a state of mental and physical loss or inability to resist," and this was a case in which the crime of quasi-rape was impossible to complete due to the error of the object. On the other hand, the opposing minority opinion states that the object of a quasi-rape crime, like a rape crime, is a "person". The dissenters argued that the facts did not support an inchoate crime (attempt) charge because the sexual penetration had taken place. In the U.S., crimes are established if they meet objective and subjective requirements. Justifications or excuses are grounds for defenses against crimes. However, the basic legal principles of attempts to commit impossible crime under the Korean criminal law and impossibility defense under the American criminal law are the same. There was a case before a US Military Court of Appeals which was similar to the Korean Supreme Court case on attempted quasi-rape charges. In the US case, a woman dancing together in a bar collapsed in the plaintiff’s arms and the plaintiff took her to a car for sex, but the woman who the plaintiff thought had collapsed under the influence of alcohol was actually dead. The U.S. Military Court of Appeals determined that the fact that the victim was already dead at the time of the crime could not be a defense for rape, and the defendant was punished for attempted rape. In this paper, the author reviewed the Korean Supreme Court case and the US military court case from a comparative legal point of view related to the attempts to commit an impossible quasi-rape crime. The basic structure of the case of the Korean Supreme Court and the case of the U.S. Court is the same as the case of an impossible crime or impossible defense. The majority opinion of the Korean Supreme Court seems reasonable to punish the plaintiff for his criminal act and intent by applying the law of the impossible crimes to the case.