미국 형법상 주관주의에 기초한 미수범 처벌 확장의 비교법적 쟁점

This article analyzes issues related to the theory of attempt that changed when the Model Penal Code began to identify attempt offenses based on subjectivism. Whereas criminal law of South Korea recognizes the principal form of attempt as an obstructive attempt, with a discretionary reduction from a completed offense, and punishes premeditation as an exception, the United States does not recognize premeditation, instead punishing it the same as a completed offense. Whereas Common Law imposed an objectivist restriction by requiring a weaker objective risk of harm than a completed criminal, state and federal laws and precedents, including the Model Penal Code, have expanded the scope of the attempt theory on the grounds that the actor's risk of antisocial behavior is the same as that of a completed criminal at the moment of execution. While this article agrees that there must be a definite intent to act as a subjective element of attempt, it has expanded the scope of attempt by relaxing the recognition of the subsidiary circumstances that are adjunct to the element. The timing of the commencement of execution, which distinguishes punitive premeditation from punitive attempt, is similar to our recent jurisprudence, but on the whole, the scope of the offense is expanded by adopting a substantial step criterion, which occurs earlier than the proximity criterion. In addition, unlike Korean criminal law, which recognizes both incapacitated and abortive attempts and considers them differently in sentencing, the U.S. does not recognize incapacitated defenses, but only abortive attempts. This shift toward subjectivism in the United States is justified by faithfully grasping the essence of attempt, the practical implication of which is to prevent crime in advance.