미국형법상 미수의 유형과 그 내용

Abstract

In American Criminal Law there are ‘inchoate crimes’ such as attempt, conspiracy, and solicitation. ‘Inchoate’ means ‘incomplete’, ‘unsuccessful', ‘imperfect, ‘undeveloped’ and ‘unripened’. Among inchoate crimes attempt is a crime where the actor has as his or her ultimate objective another (completed or ‘choate’) criminal offence, but somehow or other fails to achieve that particular criminal end. An attempt occurs when a person, with the intent to commit a crime offence, engages in conduct that constitutes the beginning of the perpetration of, rather than the ‘mere preparation’ for, the target offence. Scholars say criminal attempt is dating back to the Greek philosopher Plato, but since late 18C or early 19C the law of attempt was fully accepted in the English Common Law. Criminal attempt comprise three elements: an intent or purpose to commit W reus) and a failure to commit the crime. There are major legal tests for actus reus of attempt: last act test; physical proximity test; unequivocality test; substantial step test. And a criminal attempt involves a dual intent: an individual must intentionally perform acts that are proximate to the completion of a crime; an individual must possess the specific intent of purpose to achieve a criminal objective. However, all kinds of attempts are not punished. There are two kinds of attempt which are recognized as affirmative defenses: impossibility and abandonment or renunciation. Traditionally a factual impossibility is not a defense whereas legal impossibility is recognized as a defense, but nowadays especially Model Penal Code does not recognize the defense of factual impossibility and legal impossibility. And according to MPC voluntary abandonment means a charge in the actor’s purpose not influenced by outside circumstances, what may be termed repentance of change of heart. Lack of resolution or timidity may suffice.