중지범의 자의성 판단에 관한 비교법적 고찰 - 대법원 1993. 10. 12 선고 93도1851 판결 -

The Korean Criminal Code exempts from punishment one who voluntarily abandons the completion of an intended crime. When a person voluntarily ceases his criminal act the punishment is mitigated or remitted. The defense of abandonment in American criminal law is very similar to ‘voluntarily ceased crime' in the Korean Criminal Code. The German Criminal Code has a very similar provision on this matter. This article is a systematic discussion of the author's understanding of the ‘voluntarily ceased crime' doctrine in the Korean Criminal Code in comparison with court opinions in the US and Germany focusing on cases in which the actor is persuaded by a rape victim. The leading Korean and German cases on this doctrine hold that persuasion by the victim does not render the abandonment involuntary and that there should be no liability for attempted rape. The German Supreme Court's opinion was based on the theory that the law does not require that the motive of the abandonment have merit or be commandable. However, in similar cases the US courts reject the possibility of an abandonment defense. In McNeal, the court ruled that the defendant's renunciation was not voluntary because he was motivated by unexpected resistance due to the victim's persuasion. In Taylor, the court denied the defense on the grounds that the defendant's abandonment was neither voluntary nor complete. The author of this article argues that the Korean Supreme Court's opinion was proper because under the Korean Criminal Code, voluntary abandonment is just a mitigating factor and not a defense.