미성년자의제강간죄에서 법률포섭의 불일치 - 미수의 체계적 이해를 배경으로 -

Article 305 of the Criminal Code, also known as “sexual abuse of minors,” defines sexual intercourse or indecent acts with a person under the age of 13 as sexual abuse of minors. Paragraph 1 states that a person is guilty of sexual abuse of minors if they have sexual intercourse or commit indecent acts with a person under the age of 13. Paragraph 2 states that a perpetrator over the age of 19 who has sexual intercourse with a person between the ages of 13 and 16 is also guilty of sexual abuse of a minor. A new problematic situation in the application of these provisions arises when a perpetrator engages in sexual abuse with a victim that he believes to constitute a crime under sections 1 or 2, but which in fact does not and leads to a crime under another section. This may be a mistake in the broadest sense, but it is still a question of attempt. The doctrine of attempt, however, refers to cases in which the offender's unlawful act does not lead to an actual result, and not to cases that are not regulated by a specific law. Although Article 2 is the more recent of the two, it should be interpreted as a general rule and Article 1 as a special rule in the legal system. Consequently, in the case of Article 305, which regulates offenses such as sexual intercourse with a minor, the correct legal interpretation is to recognize Article 1. It is important to note that the consequences of Article 2 are to be considered throughout as a prerequisite for the offense under Article 2 and not as an attempt or vice versa.