불능미수 성립범위에 관한 비교법적 연구

Our Korean Criminal Act §27 legislated in 1953 provides that 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 resulting danger, but the punishment may be mitigated or remitted. The provision is related to the Impossible Crime. German Criminal Act §23 (3) is related to the Impossible Attempt. Therefore, Korean Criminal Act §27 is different from German Criminal Act §23 (3). Thus, 'de lege lata' of the Impossible Crime could not be the same Korean Criminal Act as German Criminal Act. The result of this article could be summerized as follows : Firstly, the ruling of the Court is reasonable from the point of view that the Korean Criminal Act §27 should be rather confined to the criminal. And as the author's opinion, it is necessary to impose a restriction on the meaning of dangerousness. Secondly, the unreasonable extention of the scope of the Impossible Crime to punish couldn't be allowed in Korean Criminal Act §27. In this respect, I think, the concrete danger theory would be reasonable in interpreting §27. Also it is proper to interprete the scope of being mistaken by the defendant, and rather within the means or object in the Impossible Crime. Lastly, the author has researched the Impossible Crime in ‘de lege lata’. Moreover, he proposes that it would be improved by introducing the concrete norm of the commensement stage for the commission of the crime in ‘de lege ferenda’.