「성폭력처벌법」상 ‘특수강간치상죄’의 미수범 인정 여부를 통해 본 결과적 가중범의 미수 = Examining Attempt Liability in Result-Qualified Offenses through the Lens of ‘Rape Resulting in Injury’ under the 「Act on Special Cases Concerning the Punishment of Sexual Crimes」

다국어 초록 (Multilingual Abstract)

In Korean criminal law, the legislative structure governing result-qualified offenses lacks systematic coherence, generating persistent interpretive challenges. One of the most contentious issues concerns whether an “attempt” of a result-qualified offense can be conceptually recognized. Scholarly debate on this subject gained momentum following the 1995 amendment to the Criminal Act, which newly introduced a provision penalizing attempted robbery resulting in death or injury(Article 342).
Before this amendment, the former 「Act on the Punishment of Sexual Crimes and Protection of Victims」(「Sexual Violence Prevention Act」) had already provided for the punishment of attempted rape resulting in death or injury. Yet this did not immediately spark significant doctrinal controversy. At the time, the statute defined the subject of rape-resulting-injury as “a person who commits such crime,” which the Supreme Court interpreted as requiring a completed act of rape. Accordingly, the Court held that an attempted rapist could not be the perpetrator of rape-resulting-injury. Legislators later amended the statute to recognize attempted rape offenders as potential subjects of rape-resulting-injury, and academic debate subsequently intensified over whether attempts of result-qualified crimes were theoretically possible.
Following this amendment, lower courts began to recognize attempted rape-resulting-injury where rape was attempted but injury occurred. The Supreme Court, however, reversed these decisions, holding that although attempted rapists could now be subjects of rape-resulting-injury, the offense itself could not exist in an attempted form. This inconsistency persisted even after the enactment of the 「Act on Special Cases Concerning the Punishment of Sexual Crimes」(「Sexual Violence Punishment Act」), which again included attempt-punishment provisions for rape-resulting-injury. Repeated conflicts between lower-court judgments and Supreme Court reversals continued until the Supreme Court, in a recent en banc decision, ultimately held by majority that attempted result-qualified offenses under the Act—including attempted rape-resulting-injury—cannot be recognized.
While this en banc ruling has temporarily settled the controversy as it relates to the 「Sexual Violence Punishment Act」, broader issues remain unresolved. The Criminal Act still contains explicit provisions penalizing attempted result-qualified offenses such as robbery resulting in death or injury and hostage-taking resulting in death or injury. Whether such attempts can logically or legally exist continues to be debated. Additionally, in light of the Supreme Court’s acceptance of quasi result-qualified crimes, further questions arise concerning offenses such as unlawful confinement resulting in injury—which is typically construed as a quasi result-qualified offense and is also subject to attempt-punishment provisions.
This paper therefore focuses on the doctrinal and legislative implications of recognizing(or refusing to recognize) attempt liability in result-qualified crimes, using the example of rape-resulting-injury under the Sexual Violence Punishment Act. It further proposes legislative reform measures to resolve the persistent uncertainty and establish a coherent framework for addressing attempts of result-qualified offenses.