술에 취해 항거가 곤란한 사람에 대한 준강간죄의 불능미수

On March 28, 2019, the Korean Supreme Court declared that the accused who had sexual intercourse with a victim who has difficulty in resisting to drunkenness shall not be punished for Quasi-Rape by Compulsion, if the victim was not the condition of unconsciousness or inability to resist. However the Korean Supreme Court adjudged the accused to be guilty of attempt to impossible Quasi-Rape, This ruling was meaningful in that it had clarified the requirement for the impossible attempt, especially to Quasi-Rape that was rarely ruled of in the Courts. In this case, however, the accused completed the sexual intercourse with the victim. Thus the accused in this case can not be punished to the impossible attempt, because the attempted crime is the case when an intended crime is not completed or if the intended result does not occur. The dissenting opinion in this case claimed the act of the accused does not constitute the attempt to impossible Quasi-Rape for that reasons. The ruling of the Korean Supreme Court throw doubt that it applied the laws on the impossible attempt by constraint in order to avoid the acquittal of the accused who had infringed on the sexual freedom of the victim. This paper seeks the reasonable ways to punish a criminal who took advantage of the victim’s condition in want of resistance.