준강간죄 불능미수의 재구성 - 2018도16002와 2021도9043을 비교하여 -

Abstract

This paper sets its research objective as a critical review of the Supreme Court en banc Decision 2018Do16002, which established the doctrine of impossible attempt in quasi-rape, and its subsequent application in the ruling 2021Do9043 (hereinafter referred to as the Subject Ruling). The precedent case was met with vigorous academic criticism for its jurisprudential overreach in recognizing an impossible attempt despite the defendant having completed the act of intercourse. Furthermore, the Subject Ruling raises logical questions by applying the identical doctrine of impossible attempt despite the distinct factual circumstances where the defendant failed to reach intercourse. To examine the rationale behind the application of the same 'attempt' doctrine to these disparate facts, this study re-examines the interpretation of the concepts of 'attempt' and 'result' in Article 25 of the Korean Criminal Act. In contrast to the prevailing scholarly view and judicial precedent, which interpret 'result' as the 'fulfillment of the constituent elements of a crime,' this paper proposes interpreting 'result' as a 'change in the external world,' based on the fact that the first clause of Article 25 separately governs cases where 'the act was not completed.' According to this revised interpretation, the precedent case (2018Do16002), where the defendant completed the act of intercourse and thereby initiated a change in the external world, cannot be deemed an attempt in itself, as the result has already occurred. Instead, the defendant's error regarding the nature of the object (i.e., whether the victim was semi-conscious or incapable of resistance) is considered a non-essential error that does not affect the establishment of the crime, thus justifying the conclusion that the resulting offense is Consummated Rape or quasi-rape. The Subject Ruling clearly involves an attempt, as the defendant commenced but failed to complete the act of intercourse. However, the Supreme Court's classification of this as an impossible attempt overlooks the critical distinction between frustrated attempt and impossible attempt, as well as the factual reality of the case. As stated in the indictment, the offense was interrupted by an objective external impediment—the victim's resistance—specifically, 'the defendant failed to achieve his purpose because the victim refused and protested.' Therefore, the Subject Ruling should be interpreted as a Frustrated Attempt in quasi-rape, where the result did not occur due to an external impediment following the commencement of the execution, an interpretation which is consistent with the provisions of Article 25 of the Criminal Act. Ultimately, the Subject Ruling erred by uncritically following the precedent and subsuming a clear case of frustrated attempt—where the offense was interrupted by external factors—into the domain of impossible attempt. This error renders the systematic classification of criminal attempts meaningless, blurs the boundaries between frustrated and impossible attempts, and potentially compromises the Principle of Legality in Criminal Law, which demands strict interpretation of penal provisions. It is suggested that future courts must ensure substantive validity by strictly distinguishing between whether the result occurred and what caused the interruption of the execution, moving away from mechanical application of legal doctrines.