영국형법상 불능미수 이론과 그 함의

In English Criminal Law, the clause on impossible attempt did not exist. But since 1980 there was a exuberant debate on how to legislate about the law on impossible attempt in the House of Lords and academics. The English-American Law divides impossible attempts into legal impossiblity and factual impossiblity and again real impossible attempts are divided to object, method and means impossible ones. Among theses attempts legal impossibility are viewed as non-punishable in Englsih Criminal Law, because of the deficiency of legal requirements to punish(nulla poena sine lege). Compared to clause on impossible attempts of English Criminal Law, that of Korean Criminal Law is unique, because impossible attempts clause in KCL ask to be riskness even if the result can not be occurred due to the error of object or means etc. But, the debate on impossible attempts in English Criminal Law can have important implication to KCL, because ECL has a tendency to deny the concept of impossible attempts owing to making much of the actor’s intent. The opposite tendency looked upon the object riskness for crime as important. So, in the R. v. Smith case, the English court decided the punishability by the object riskness not by actor’s intent. In this case, the defendant receive the corn beef that he clearly believed it to be stolen, but the goods he received were no longer stolen property. There not much similar cases on impossible attempt in Korean Criminal Cases. In KCC, there is a interesting case on impossible rape to trans-gender female(legally male), the two defendants attempted to rape trans-gender female, but they could not complete the rape because of the object of rape are legally male(At that time Korean Criminal Law ask to rape legally female to complete rape). In this case the Supreme Court affirmed the not-guilty conviction of appeal court, because of the object of the rape is not female. But, the riskness of rape crime in this crime is obvious, so the two defendants could be punished as impossible attempt of rape. So, in this paper I reviewed many theory and cases about impossible attempt, and proposed to ways to improve on impossible attempt in KCL.