준강간죄의 불능미수 성립여부에 대한 고찰 - 대법원 2019.3.28. 선고 2018도16002 전원합의체판결을 중심으로 -

In order for quasi-rape to be established, it is natural that the actual victim should be in a state of mental and physical loss or inability to protest, because he or she must commit adultery.,In this case, the first trial said that the victim was guilty of quasi-rape by recognizing the victim's mental and physical loss or inability to protest, but the second trial and the Supreme Court did not believe that the victim was in fact in a state of mental and physical loss or inability to protest. That's it.,If the two courts and the Supreme Court want to recognize the incompetence of quasi-rape, the actual victim should have been in a state of mental and physical loss or inability to protest, and the defendant should have used it to believe that the victim was in this state. However, if the Supreme Court has focused on the fact that the state of 'inability to protest' in the quasi-rape crime has been interpreted by including cases where rebellion is remarkably difficult because it means that psychological or physical rebellion is absolutely impossible or remarkably difficult because of causes other than mental and physical loss, at least if it is difficult for the victim to recognize the state of mental and physical loss, It seems to have been enough.,In the end, it can be said that the composition requirement of the victim's mental and physical loss or inability to protest in the quasi-rape crime was satisfied, and the defendant recognized the state of the victim's remarkable difficulty in protest and adultery using this state.,Therefore, the conclusion of the first judgment that recognized the rider of quasi-rape is reasonable. Article 302 of the Criminal Code stipulates that "a person who commits adultery or molestation as a hierarchy or power against a minor or a minor shall be punished by imprisonment for not more than five years.",In this case, the Supreme Court did not recognize the victim's mental and physical loss or inability to protest, but if the prosecutor assumed that the prosecution filed a complaint under Article 302 of the Criminal Code, the court is expected to have fully acknowledged the victim's mental and physical weakness.,It may seem as if this article is a crime targeting innate mental and physical minors, but the mental and physical minors mean people with weak ability to distinguish things and decision making, so those who are in a state of difficulty in resisting due to excessive drinking are enough to be seen as mental and physical minors.,Therefore, in this case, the victim is subject to adultery for the mentally and physically weak.,However, since the crime must be used by means of hierarchy or power, it is necessary to examine whether there was such an act in this case.,Hierarchy means that an actor misinterprets, depreciates, or uses the site to achieve his/her purpose, and power means all the forces that can overpower or confuse a person's free will, but it is not necessarily limited to the exercise of tangible power, and includes not only violence, intimidation but also social, economic, political status and pressure by power. In this case, the victim was drunk and the protest was remarkably difficult, and it is clear that these victims can easily be overpowered.,The defendant may be interpreted as a hierarchical or powerful force because the defendant uses the condition which is quite disadvantageous to the victim, but the act of blocking the victim who twists and makes a sound and forcibly stripping his clothes is an exercise of tangible power to overpower the other person's free will.