강도죄와 강간죄에서 폭행·협박을 제한하는 해석에 관한 소고 - 대법원 2023. 9. 21. 선고 2018도13877 전원합의체 판결을 계기로 하여 -

This article critically examines the Korean Supreme Court’s narrow interpretation of “violence or intimidation” in robbery and rape offenses. The Supreme Court has held that in robbery, the degree of violence or intimidation must objectively suppress the victim’s resistance or render the victim unable to resist, and that for rape to be established, the perpetrator’s violence or intimidation must make it impossible or significantly difficult for the victim to resist. This restrictive interpretation (often termed the “narrowest interpretation” theory) can be analyzed on two levels: (1) limiting the requisite degree of violence or intimidation, and (2) treating that degree as part of the definition of “violence or intimidation” in the statutory offense. This article finds that both aspects of the narrow interpretation are justified in the context of robbery. The limitation on degree (aspect (1)) is supported by the requirement of causality, and incorporating the degree into the offense definition (aspect (2)) helps distinguish robbery from extortion. In contrast, for rape offenses, while the limitation on degree (aspect (1)) remains valid due to causality considerations, the second aspect is unwarranted. Unlike robbery, there is no sexual offense analogous to extortion. Thus, when violence or intimidation is employed with the intent to commit rape, the proper charge is attempted rape, not attempted coercion, regardless of the intensity of force. In other words, the narrow interpretation should only apply to the causal relationship, but once violence or intimidation is exercised with intent to rape, it marks the commencement of the crime and constitutes attempted rape irrespective of its degree.