불능미수(형법 제27조)의 “위험성”에 대한 재검토: 행동법경제학적 관점을 포함하여

Article 27(Impossible Attempt) of Korean Criminal Code provides, Even though the occurrence of a crime is impossible because of the means adopted for the commission of the crime or because of mistake of objects, the punishment shall be imposed if there has been a dangerousness, but the punishment may be mitigated or remitted. In this provision some criticize that the requirements of the article is in itself somewhat contradictory in that there still can be dangerousness while the occurrence of a crime is impossible. This provision has been controversial in interpreting the two requirement in question. This paper suggests that the “dangerousness” means potential dangerousness of the completion of a crime, while the impossibility of a crime is an actual dangerousness. This characteristic of the impossible attempt distinguishes from the possible attempt, which is thought to be able to complete a crime at the time of attempt. This interpretation of the article of the paper is in harmony with the current court decisions, which make use of the criteria whether the normal person would find the occurrence of a crime is possible from the perpetrator’s knowledge at the time of attempt. We can call this a “theory of potential dangerousness.”In the second part, the paper explains the main findings of the recent behavioral law and economics theory, trying to apply these in deciding the potential dangerousness and actual possibility of a crime. These include hindsight bias,self-preserving bias, optimism bias, and availability heuristic. These standpoints could give useful insight in the interpretation and application of the impossible attempt of Art. 27 of the Korean Criminal Code. The 21st century is an era of “Evolvo, ergo sum.” in contrast to “Cogito, ergo sum.” by Rene Descartes in 17th century. The author wishes to contribute to the development of interdisciplinary research in criminal theories and other related fields.