[1] The contents of "the intention" in the crime of quasi-rape

[2] Whether the crime of quasi-rape is established in a case where the defendant has sexual intercourse with the victim with the intent to have sexual intercourse by taking advantage of such condition, but the victim does not actually have the state of mental or physical disability or impossible to resist (affirmative)

[1] Article 297 of the Criminal Code provides that "a person who, through violence or intimidation, has raped another person shall be punished by imprisonment for a limited term of not less than three years." Article 299 of the Criminal Code provides that "The same shall apply to a person who has sexual intercourse or commits an indecent act by taking advantage of the person's condition of mental or physical disability or of failing to resist." The Criminal Code provides that "a person who has sexual intercourse or committed an indecent act by taking advantage of the state of mental or physical disability or of failing to resist, other than the method of violence or intimidation, shall be punished for the crime of rape." As such, the intention of quasi-rape refers to a deliberation in recognition of the possibility that the victim has a state of mental or physical disability or of failing to resist, and that it is possible

[2] [Majority Opinion] Article 300 of the Criminal Act provides that an attempted quasi-rape shall be punished. In addition, Article 27 of the Criminal Act provides that “The punishment against an impossible attempted crime may be mitigated or remitted, if there is a danger even if the occurrence of the consequence is impossible due to the means for the commission of the crime or mistake of the object: Provided, That the punishment may be mitigated or remitted.”

Therefore, in a case where the Defendant had sexual intercourse with the victim in recognition that the victim was in a state of mental or physical disability or impossible to resist, and the victim was not in fact in a state of mental or physical disability or impossible to resist, it cannot be said that the occurrence of the constituent consequence prescribed in the crime of quasi-rape was impossible from the beginning, and that such consequence was actually caused. The Defendant commenced the commission of quasi-rape, but the crime did not reach the number of the crimes, thereby constituting an attempted crime of quasi-rape. The Defendant committed an impossible attempt to commit the crime of quasi-rape, since there was a risk that the result of quasi-rape might occur when considering the circumstances perceived by the Defendant at the time of the act

Specific reasons are as follows.

① Although an impossible attempt stipulated in Article 27 of the Criminal Act is a criminal intent and an act that can be seen as the commencement of the commission of a crime, there is no possibility of satisfying the requirements of a crime from the beginning due to a mistake in the means or object of the commission of the crime. As a result, it is impossible to satisfy the requirements of a crime, but it is punishable as an impossible attempt if there is a danger of such act. Impossibility of an impossible attempt is different from a mistake in fact that did not recognize the existence of a fact

② Under Article 25(1) of the Criminal Act, an attempted crime is prescribed by the Criminal Act stating, “When an intended crime is not completed or if the intended result does not occur, it shall be punished as an attempted crime.” Article 26 of the same Act provides, “When a person voluntarily ceases an act that the offender began or prevents the occurrence of the result of such act, the punishment shall be mitigated or remitted.” A attempted crime or attempted crime is distinguishable from an impossible crime, the possibility of which can be objectively excluded from the beginning because, at the time of commencement of the commission of a crime, the actual number of crimes intended by the offender might be established when determining that the intended crime was committed.

(3) “Misunderstanding the means or object of enforcement” under Article 27 of the Criminal Act means that the occurrence of a result is impossible from the beginning with the means or object of action attempted by an actor. In addition, “Impossibility of occurrence of a result” means that the crime cannot be completed due to the means or object’s original impossibility.

On the other hand, ‘risk', which is the requirement for an impossible attempt separate from an impossible crime, should be determined from an objective judgment of the general public in regard to the circumstances recognized by the defendant at the time of the act.

④ The legal interest of the crime of quasi-rape under Article 299 of the Criminal Act is a crime established by having sexual intercourse with a person’s mental or physical condition, taking advantage of the person’s mental or physical condition to resist, and the legal interest of the same is to protect the sexual self-determination of a person who is unable to defend himself/herself. The state of mental or physical condition is to exist in the victim. As such, the subject of the act in the crime of quasi-rape refers to “a person in a state of mental or physical condition, or to resist.” Furthermore, the act constituting the elements of the crime of quasi-rape refers to “a person in a state of mental or physical condition, or to resist.” In addition, the act

Although the Defendant had sexual intercourse with the victim with the intent to have sexual intercourse in recognition that the victim was in a state of mental or physical disability or impossibility to resist, if the victim had not actually been in the state of mental or physical disability or impossibility to resist at the time of the commencement of the commission, it may be deemed that there is no possibility that the crime of quasi-rape might be completed by mistake in the means of the commission or the target. In such cases, if the general public had objectively judged the circumstances recognized at the time of the commission of the act, and there was a risk of causing the consequence of quasi-rape by infringing on the sexual self-determination of a person who is unable to defend

[Dissenting Opinion by Justice Kwon Soon-il, Justice Ansan-chul, and Justice Kim Jong-hwan] (1) Article 13(a) of the Criminal Act provides that “an act performed without recognizing the facts which constitute the constituent element of a crime shall not be punishable.” Here, “fact which constitutes the constituent element of a crime” refers to an objective constituent element, which is an external mark, under the Criminal Act, such as the subject of the act, object, object, act, result, etc.” On the contrary, psychological and mental condition belonging to the inside of the offender is a subjective constituent element, and an intentional act is a representative example. Article 13 of the Criminal Act provides that an intentional act in order to constitute a crime requires recognition of the principal agent, object, act, result, etc., which is an objective constituent element. Thus, if a special act is required in the context of a crime (e.g., “disor,” in the crime of rape or quasi-rape in the crime of quasi-rape, the existence of such an act should also be recognized by the offender.

② Article 27 (Impossibility of Crime) of the Criminal Act provides, “The punishment shall be mitigated or remitted, even if the occurrence of a result is impossible due to an error in the means or object for the commission of the crime.” The term “an impossible crime” as referred to in the table of this Article refers to a case in which the outcome of the crime or the possibility of infringement of legally protected rights cannot be absolutely established due to the nature of the crime. Here, the term “misunderstanding of the means for the commission of the crime” means a case in which, although the commission of the act was commenced, it is difficult to bring about the possibility of the occurrence of the constituent act in question due to mistake or mistake in the nature of the means for the commission of the act chosen by the actor, even though it is impossible to bring about the intended result of the act in question. In addition, it is impossible to distinguish the concept of “an impossible crime result” from the result of the commission of the act in question from that of the actor in question at the stage of the occurrence of the crime, which would result in the impossibility of the occurrence of the crime.”

Although the title of this provision is an impossible crime, its content is about an impossible crime, i.e., an impossible crime. It refers to a case where an impossible crime is punishable as an attempted crime because of the nature of an act, even though there is no possibility of realizing the elements of a crime, in any case, due to the nature of the act. The precedent takes the position that the determination of a danger as the criteria for determining an impossible attempted crime should be based on whether it is objectively recognized by the defendant at the time of the act, and whether it is likely to cause the result by deeming it as an ordinary

The legislative purport of Article 27 of the Criminal Act is that the realization of the constituent elements according to the intention of an actor is objectively deemed as not being possible, and thus, it is not subject to punishment as an attempted crime in principle. However, in exceptional cases meeting the risk requirements from a normative perspective, it is possible to punish an attempted crime by deeming it as an attempted crime. For this reason, whether the occurrence of the result as referred to in Article 27 of the Criminal Act is impossible or not should be determined on the basis of which the probability of the occurrence of the result exists under any condition in light of the general standards, not the actor who has erroneously committed the means or object of the implementation, but the meaning of the act itself. Therefore, even under certain conditions, even though there is no probability of the occurrence of the result, if the result was not achieved due to the situation at the time of the act, it is not impossible attempts, but only attempts

③ The crime of rape or quasi-rape is a crime requiring the occurrence of constituent elements and the infringement of the legal interest and protected by the law. Therefore, whether the crime of rape or quasi-rape resulted in sexual intercourse should be determined on the basis of whether the crime of rape was committed or whether the individual’s right to sexual self-determination was infringed.

The Majority Opinion considers the subject matter of the crime of quasi-rape as “a person in a state of mental or physical disability or inability to resist.” However, Article 299 of the Criminal Act provides that “a person who has sexual intercourse or commits an indecent act by taking advantage of one’s mental or physical disability or state of failing to resist shall follow the precedent under Articles 297, 297-2, and 298,” punishing “using the state of mental or physical disability or failing to resist.” In other words, using the state of mental or physical disability or failing to resist constitutes a special form of act as a means of crime, and the subject matter of the act of quasi-rape is a person. This is clearly revealed compared with Article 297 of the Criminal Act providing that “a person who rapes a person by assault or intimidation shall be punished by imprisonment for a limited term of not less than three years.” However, the Majority Opinion is the same in cases where the part corresponding to “rape or intimidation” under Article 297 of the Criminal Act exists in the state of quasi-rape, namely, “an act of quasi-rape or rape.”

④ In conclusion, the Majority Opinion confuses the issue of meeting the constituent elements or requirements and the meaning of impossibility of occurrence of the consequence under Article 27 of the Criminal Act. If deemed as the Majority Opinion, it does not mean that the act of a criminal defendant does not meet the constituent elements of a crime instituted by a public prosecutor, and thus, constitutes a case where the occurrence of result is impossible. In addition, it would lead to the conclusion that a criminal defendant may be punished as an impossible attempted crime even if the public prosecutor fails to prove the fact that constitutes the constituent elements of a crime prescribed by the applicable provisions of the indictment stated in the indictment. Such interpretation theory would result in the complete punishment of the principle of legality, which is the basic principle of the modern

[1] Articles 13, 297, and 299 of the Criminal Act / [2] Article 12(1) of the Constitution of the Republic of Korea; Articles 1(1), 13, 25, 26, 27, 297, 299, and 300 of the Criminal Act

[2] Supreme Court Decision 77Do4049 Decided March 28, 1978 (Gong1978, 10761), Supreme Court Decision 98Do2313 Decided October 23, 1998, Supreme Court Decision 98Do3257 Decided May 26, 2000 (Gong200Ha, 1574), Supreme Court Decision 2005Do8105 Decided December 8, 2005 (Gong2006Sang, 141), Supreme Court Decision 2007Do3687 Decided July 26, 2007 (Gong207Ha, 1419), Supreme Court Decision 2015Do7343 Decided August 13, 2015)

Defendant

Defendant

Law Firm Taeil, Attorneys Choi Han-man et al.

High Court for Armed Forces Decision 2018No88 Decided September 13, 2018

The appeal is dismissed.

The grounds of appeal are examined.

1. Case history

A. The military prosecutor prosecuted the Defendant as the following charges of rape.

At around 22:30 on April 17, 2017, the Defendant drinked alcoholic beverages with the Defendant’s wife and the victim at his own house at around 01:00 on the following day, and entered the Defendant’s wife at around 02:00, and the victim also entered the Defendant’s inner room at around 02:00, and followed the victim’s chest, and she talked with the victim’s chest by inserting his fingers, inserting his fingers into panty with the victim’s panty, and she was sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually.

B. The first instance court approved the military prosecutor’s modification of indictment which added the following as the name of the conjunctive crime, quasi-rape and the ancillary charge.

The Defendant had sexual intercourse once with the victim under the influence of alcohol at the time, time, and place described in the foregoing A. Accordingly, the Defendant abused the victim by taking advantage of the victim’s failure to resist.

C. The first instance court rendered a not guilty verdict on the grounds that the evidence presented by the military prosecutor alone cannot be readily concluded that there was assault or intimidation to the extent that it would make it impossible or considerably difficult to resist, and determined that the part concerning rape, which is the primary charge, was not guilty, and that the part concerning quasi-rape, which is the ancillary charge, was guilty. The Defendant appealed only against this.

D. The lower court, under the name of the conjunctive crime, permitted quasi-rape and modification of indictment by the military prosecutor who added the following as the ancillary charge.

The Defendant, at the time, at the time and place indicated in the above A (a) in question, had sexual intercourse with the victim, who was misunderstanding that the victim was in a state of failing to resist, by drinking so that the victim was unable to resist, even though the victim was unable to resist, at the time and place so that the victim could not be raped. Accordingly, the Defendant attempted to rape by taking advantage of the victim’s state of refusing to resist.

E. The lower court rendered a not guilty verdict on the part of quasi-rape which was found guilty in the first instance court on the ground that the evidence presented by the military prosecutor alone was insufficient to recognize that the victim was in the state of mental or physical disability or impossible failure at the time of the instant case, and found the Defendant guilty on the part of the attempted quasi-rape added to the ancillary facts charged. However, the part of the ancillary facts charged “to prevent the victim from suffering from the situation of causing the victim who tried to escape from the situation of making

F. The Defendant filed an appeal against the guilty portion only by the Defendant. The Defendant asserted in the grounds of appeal as follows. (1) The Defendant did not have the intention of quasi-rape. (2) The Defendant did not actually have the sexual intercourse with the victim, which did not infringe on the right to sexual self-determination because the victim was not in a state of mental disorder or failing to resist, and thus, the likelihood of the occurrence of quasi-rape is unlikely to occur,

2. As to the ground of appeal that there is no intention to quasi-rape

A. 1) Article 297 of the Criminal Act provides, “A person who, through violence or intimidation, has raped another person shall be punished by imprisonment for a limited term of not less than three years.” Article 299 of the Criminal Act provides, “A person who has sexual intercourse or commits an indecent act by taking advantage of the person’s mental disorder or the state of non-performance to resist, shall be punished in the same manner as Articles 297, 297-2 and 298.” The Criminal Act provides, “The act of sexual intercourse by taking advantage of the state of mental disorder or non-performance to resist, which is not a method of assault or intimidation, is punished for the crime of rape.” Thus, the intention of quasi-rape refers to the victim is in the state of mental disorder or non-performance, and the possibility of

2) In a case where a criminal defendant denies the criminal intent, which is a subjective element of a constituent element of a crime, the criminal intent itself cannot be objectively proved, and therefore, it is inevitable to prove it by means of proving indirect or circumstantial facts relevant to the criminal intent in light of the nature of an object. Determination as to what constitutes an indirect or circumstantial fact ought to be based on normal empirical rule and ought to be based on a reasonable method of determining the link of facts based on close observation or analysis (see, e.g., Supreme Court Decision 2005Do8645, Feb. 23, 2006). Meanwhile, as a type of willful negligence, the criminal intent has the awareness of the possibility of occurrence of the criminal fact, and furthermore, the intent of a review to allow the risk of criminal fact. Whether an offender permits the possibility of occurrence of a criminal fact should be confirmed from the perspective of the offender, taking into account the possibility of occurrence of the relevant criminal fact into account the specific circumstances, such as the form of an act and the situation of an act appeared outside the criminal intent (see, e.g., Supreme Court Decision 20014Do174.

3) In addition, criminal facts have to be proven to the extent that there is no reasonable doubt (Article 359(2) of the Military Court Act, Article 307(2) of the Criminal Procedure Act), but the selection of evidence and probative value of evidence, which are based on the premise of fact-finding, belong to the free judgment of the fact-finding court (Article 360 of the Military Court Act, and Article 308 of the Criminal Procedure Act). This means that a judge’s adoption and use of necessary evidence and evaluation of the substantial value of evidence, among evidence admissible, belongs to the judge’s free evaluation of evidence. Therefore, insofar as it is not contrary to logical and empirical rules by either rejecting sufficient probative evidence without any reasonable ground or by adopting and using evidence that evidently goes against objective facts without any reasonable ground, a judge may be admitted with free evaluation of evidence (see, e.g., Supreme Court en banc Decision 2007Do1755, May 29, 2008; Supreme Court Decision 2013Do1650, Aug. 20, 2015).

B. The lower court, on the grounds the same as indicated in its reasoning, determined that the Defendant had intent to quasi-rape. This part of the grounds of appeal is justifiable to have acknowledged the Defendant’s intention to quasi-rape, even if the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the intent of quasi-rape, in view of the following circumstances revealed in light of the aforementioned legal doctrine and the evidence duly admitted and duly examined: (a) the Defendant and the Defendant’s wife and the victim were aware of the following circumstances; (b) the volume of drinking by the Defendant and the victim; and (c) the situation where the Defendant and the victim got out of the place of drinking in excess of a long time, even if the victim did not reach the state of mental or physical disability or the victim’s refusal to resist; (d) the state of the victim at the time when the Defendant started the commission of quasi-rape; and (e) the content of text messages given and received by the victim after the commission of the crime.

3. As to the ground of appeal that the crime of quasi-rape is not established

A. Article 300 of the Criminal Act provides that an attempted quasi-rape shall be punished. In addition, Article 27 of the Criminal Act provides that “The punishment against an impossible attempted crime may be mitigated or remitted, if there is a danger that the occurrence of a consequence is impossible even if the means by which the crime was committed or because of mistake of the target: Provided, That the punishment may be mitigated or remitted.”

Therefore, in a case where the Defendant, while having been aware that the victim was in a state of mental disability or impossibility to resist, had sexual intercourse with the victim with the intent to have sexual intercourse by taking advantage of such state, the occurrence of the constituent consequence prescribed in the crime of quasi-rape was impossible from the beginning due to the means or the mistake in the subject matter, and such consequence was actually caused. The Defendant’s commencement of the commission of quasi-rape but the crime did not reach the number of the crimes, thereby constituting an attempted crime of quasi-rape. The Defendant committed an impossible attempted crime of quasi-rape inasmuch as there was a risk that the result of quasi-rape might occur when considering the circumstances recognized by the Defendant at the time of the act by the general public, and thus, there was a danger that the consequence of the quasi-rape might occur (see, e.g., Supreme Court Decisions 2005Do8105, Dec. 8, 2005; 2015Do7343, Aug.

B. Specific reasons are as follows.

1) Although an impossible attempted crime stipulated in Article 27 of the Criminal Act is a criminal intent and an act that can be seen as the commencement of the commission of a crime, there is no possibility that the elements of a crime may be satisfied from the beginning due to a mistake in the means or object of the commission of the crime. As a result, it is impossible to satisfy the requirements of a crime, but it is punishable as an impossible attempted crime if there is a danger of the act. An impossible attempted crime is distinguishable from a mistake in fact that did not recognize the fact that

2) Under Article 25(1) of the Criminal Act, an attempted crime is stipulated by stipulating, “When an intended crime is not completed or if the intended result does not occur, it shall be punished as an attempted crime.” Article 26 of the Criminal Act provides, “When a criminal voluntarily ceases his/her criminal act which he/she began or prevents the result of such act, the punishment shall be mitigated or remitted.” The attempted crime or attempted crime is distinguishable from an impossible crime, which is objectively excluded from the beginning because, at the time of commencement of the commission of a crime, there is a possibility that the number of crimes intended by the offender might be established when determining the commission of the crime at the time of commencement of the commission of the crime.

3) “Misunderstanding the means or object of enforcement” under Article 27 of the Criminal Act means that the occurrence of a result is impossible from the beginning with the means or object of action attempted by an actor. In addition, “Impossibility of occurrence of a result” means that a crime cannot be completed due to the means or object’s original impossibility.

Meanwhile, “Risk”, which is the requirement for an impossible attempt separate from an impossible crime, should be determined from an objective judgment of the general public with regard to the circumstances recognized by the defendant at the time of the act (see Supreme Court Decisions 77Do4049, Mar. 28, 1978; 2005Do8105, Dec. 8, 2005, etc.).

4) The legal interest of the crime of quasi-rape under Article 299 of the Criminal Act is a crime established by having sexual intercourse by taking advantage of the person’s mental or physical condition or the state of failing to resist. The legal interest is to protect the right to sexual self-determination of a person who is unable to defend himself/herself due to mental or physical circumstances (see, e.g., Supreme Court Decision 98Do3257, May 26, 2000). Since the state of mental or physical condition of non-rape or failing to resist must exist in the victim, the subject of the crime of quasi-rape is “a person in the state of mental or physical condition of mental or failing to resist.” Furthermore, the act constituting the constituent elements of the crime of quasi-rape refers to “sexual intercourse by taking advantage of the state of mental or physical condition of the person in the state

Although the Defendant had sexual intercourse with the victim with the intent to have sexual intercourse in recognition that the victim was in a state of mental or physical disability or impossibility to resist, if the victim had not actually been in the state of mental or physical disability or impossibility to resist at the time of the commencement of the commission, it may be deemed that there is no possibility that the crime of quasi-rape might be completed by mistake in the means of the commission or the target. In such cases, if the general public had objectively judged the circumstances recognized at the time of the commission of the act, and there was a risk of causing the consequence of quasi-rape by infringing on the sexual self-determination of a person who is unable to defend

C. Examining the reasoning of the lower judgment in light of the foregoing legal doctrine, the instant case: (a) although the Defendant intentionally sexual intercourse the victim of quasi-rape; (b) the victim constitutes cases where the occurrence of the consequence of quasi-rape is impossible due to the means of quasi-rape or the mistake of the subject; and (c) the occurrence of the consequence is acknowledged as having been objectively determined by the general public in view of the circumstances recognized by the Defendant; (b) the lower court was partly inappropriate for the reasoning of the lower judgment, but the lower court was justifiable to have convicted the Defendant of the impossibility of the crime of quasi-rape. In so determining, the lower

4. Conclusion

Therefore, the final appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices, except there is a dissenting opinion by Justice Kwon Soon-il, Justice Ansan-chul, and Justice Kim Yong-hwan as to whether the impossible attempt of quasi-rape is established, and there is a concurrence with the Majority by Justice Park Sang-ok, Justice Park Jung-hwa, and Justice Kim Seon-soo and Justice Min You-sook and Justice Noh

5. Dissenting Opinion by Justice Kwon Soon-il, Justice Ansan-chul, and Justice Kim Jong-hwan

A. 1) Article 13(1) of the Criminal Act provides, “A person who fails to recognize the facts which comprise the constituent elements of a crime shall not be punished.” Here, “fact that constitutes the constituent elements of a crime” refers to the objective constituent elements, namely, the subject of an act, object, object, act, result, etc., which are the external constituent elements of a crime under the Criminal Act. On the contrary, psychological and mental condition belonging to the inside of the offender is a subjective constituent element, and the intentional act is a representative example. Article 13 of the Criminal Act provides, “A person who intentionally commits a crime shall have the awareness of the subject, object, act, result, etc. of an act, which is the objective constituent element of a crime, shall be punished.” Thus, in the event of a special attitude of an act (e.g., “inf., assault and threat” or “use of the state of mental or physical failure” in the crime of quasi-rape in the crime of rape, the existence of such an

2) Part 2 of the Criminal Act provides for the crime of rape and indecent act in Chapter 32. The crime of this Chapter is a crime that infringes on an individual’s sexual freedom or sexual self-determination. The fundamental elements of the crime are the crime of rape (Article 297) and the crime of indecent act by compulsion (Article 298). The crime of rape refers to the crime of rape committed by assault or intimidation in order to make it impossible or considerably difficult for the other party to resist by assault or intimidation to commit rape. The term “rape” refers to broad acts of sexual desire, but this refers to the insertion of a male sexual organ and a female sexual organ. The specific form of an act in the crime of rape is “Assault or intimidation,” the object of the crime, and the constituent consequence is that the crime of quasi-rape (Article 299) is established by using the mental disorder or condition of a minor, and the crime of rape is established by means of using a deceptive scheme or a deceptive scheme with respect to a minor under Article 30 of the Criminal Act.

B. Article 27 of the Criminal Act provides, “Incompetence of the means of implementation, even if the occurrence of a result is impossible due to mistake in the means or objects of implementation, punishment shall be imposed, provided that the punishment may be mitigated or remitted.” The title of this Article refers to cases where, in light of the nature of the crime, the possibility of occurrence or infringement of legal interests cannot be absolutely established (see, e.g., Supreme Court Decisions 98Do2313, Oct. 23, 1998; 2007Do3687, Jul. 26, 2007).” Here, the term “misunderstanding of the means of implementation” means cases where, in the process of implementation, it is impossible to determine that “an impossible result would result from an impossible act” as a result of the act cannot be deemed as a result of the act’s failure or omission after the actor’s choice, it means cases where the actor cannot be deemed as a result of the act’s omission or omission in the form of the Criminal Act.”

Although the title of this provision is an impossible crime, its content refers to an impossible crime, i.e., an impossible crime. It is punishable as an attempted crime because of the nature of an act. Although there is no possibility that the constituent element may be realized in any case, the act is punishable as an impossible crime. Judicial precedents have taken the position that determination of an impossible attempted crime should be based on whether it is objectively recognized as an ordinary person’s judgment after considering the circumstances recognized at the time of the act (see, e.g., Supreme Court Decisions 77Do4049, Mar. 28, 1978; 2005Do8105, Dec. 8, 2005). From this perspective, the Supreme Court affirmed the judgment of the court below that the act of murdering the victim by drinking water to the victim, who is the 's 's first roots' or ‘defluence', constitutes an impossible crime due to mistake of the defendant, and thus, the act of the defendant was justified in the case where the defendant died at night (see, 207.71).7).

The legislative purport of Article 27 of the Criminal Act is that the realization of the constituent elements according to the intention of an actor is objectively deemed as not being possible, and thus, it is not subject to punishment as an attempted crime in principle. However, in exceptional cases meeting the risk requirements from a normative perspective, it is possible to punish an attempted crime by deeming it as an attempted crime. For this reason, whether the occurrence of the result as referred to in Article 27 of the Criminal Act is impossible or not should be determined on the basis of which the probability of the occurrence of the result exists under any condition in light of the general standards, not the actor who has erroneously committed the means or object of the implementation, but the meaning of the act itself. Therefore, even under certain conditions, even though there is no probability of the occurrence of the result, if the result was not achieved due to the situation at the time of the act, it is not impossible attempts, but only attempts

C.1) First of all, the background of the instant case is examined. The summary of the instant facts charged added the ancillary facts charged that “the Defendant, at around 02:00 on April 18, 2017, had been raped by taking advantage of the victim’s condition of refusal to resist by having her mother, preventing the victim from suffering, and having her panty sexual intercourse at the victim’s inside and outside of her home.” As to the facts charged on the first instance trial date, the Defendant denied the charge that the victim was under the influence of alcohol at the time of the crime stated in the facts charged, but was sexual intercourse with the victim’s consent. The military prosecutor found the Defendant guilty of the crime of quasi-rape, which is a quasi-rape, on the ground that there was no proof of the ancillary facts of assault or intimidation in the primary facts charged.

Only the Defendant appealed against the judgment of the first instance, and the defense counsel argued that there was no proof of the crime committed by the Defendant by submitting the statement of grounds for appeal to the effect that the Defendant used the victim’s failure to resist. Accordingly, the military prosecutor added Articles 300, 299, and 297 of the Criminal Act, the applicable provisions of the crime of quasi-rape, which is the crime of quasi-rape, to the crime of quasi-rape committed in the first instance. Even if the victim did not have the state of non-rape as alleged by the Defendant, it is possible to establish the crime of quasi-rape because the Defendant had the intention to quasi-rape. The lower court accepted the prosecutor’s assertion, and determined that the crime falls under the case where there is no proof of the crime because there is insufficient evidence to find that the victim had the state of non-rape or the state of non-rape at the

2) Of the crimes of rape and indecent act stipulated in Chapter 32 of Part II of the Criminal Act, the Defendant was prosecuted for the crime of rape and quasi-rape. The crime of rape and the crime of quasi-rape are the crime requiring actual infringement of the legal interests and interests protected by the law. Therefore, whether the crime of rape and quasi-rape was established or not or not, should be determined on the basis of whether the individual’s sexual self-determination, which is the legal interests protected by the law, was infringed. In the instant case, the first instance court and the lower court recognized the fact that the sexual intercourse was established, which is the constituent element of the crime of rape and quasi-rape. However, the first instance court did not have any evidence as to the fact that there was no special form of the act of rape, which is a specific form of the act of quasi-rape, and there was no evidence as to the fact that the victim’s sexual self-determination was infringed by the victim’s sexual intercourse. Accordingly, there is no doubt as to whether the victim’s sexual self-determination was infringed by the victim’s sexual intercourse under Article 27 of the Criminal Act.

The Majority Opinion states that an impossible attempted quasi-rape is established in the sense that the Defendant: (a) was a person who was aware that the victim was in a state of mental or impossible condition; (b) had sexual intercourse with the victim with the intent to have sexual intercourse by taking advantage of such state; (c) however, in the event the victim was not in a state of mental or impossible condition, the occurrence of the consequence of quasi-rape was impossible due to the means or the mistake in the subject matter; and (d) there was a risk of causing the consequence of the crime of quasi-rape when the Defendant objectively viewed the circumstances recognized at the time of the act; (b) however, there was an objective risk of causing the occurrence of the consequence of the crime of quasi-rape. However, there was no mistake in the sense that the crime of quasi-rape was the object of the crime of quasi-rape. Furthermore, there was no error in the identity of the object of the Defendant’s taking the victim as the object of sexual intercourse. However, the Majority Opinion does not explain to the Defendant that there was any mistake in the means of execution in this case.

The Majority Opinion considers the subject matter of the crime of quasi-rape as “a person in a state of mental or physical disability or inability to resist.” However, Article 299 of the Criminal Act provides that “a person who has sexual intercourse or commits an indecent act by taking advantage of one’s mental or physical disability or state of failing to resist shall follow the precedent under Articles 297, 297-2, and 298,” punishing “using the state of mental or physical disability or failing to resist.” In other words, using the state of mental or physical disability or failing to resist constitutes a special form of act as a means of crime, and the subject matter of the act of quasi-rape is a person. This is clearly revealed compared with Article 297 of the Criminal Act providing that “a person who rapes a person by assault or intimidation shall be punished by imprisonment for a limited term of not less than three years.” However, the Majority Opinion is the same in cases where the part corresponding to “rape or intimidation” under Article 297 of the Criminal Act exists in the state of quasi-rape, namely, “an act of quasi-rape or rape.”

As long as it is proved ex post that the victim was not in the state of mental or physical disability or impossibility to resist at the time when the defendant attempted to commit the crime, it is impossible for the defendant to use the victim’s condition of mental or physical disability or impossibility to resist, and thus, the occurrence of the result of the crime of quasi-rape was impossible from the beginning. However, as stated in Article 27 of the Criminal Act, whether the instant case falls under the case where “the occurrence of the result is impossible”, namely, where the possibility of occurrence of a result or infringement of legal interests cannot be absolutely possible due to the nature of the criminal act? Although the Majority’s formation of the concerns and legal principles can be light, it is not possible to give a positive answer. As seen earlier, “Impossibility of occurrence of the result” as stated in Article 27 of the Criminal Act differs from the concept of “non-performance of consequence” which includes not only impossible number of crimes but also impossible to realize the crime. In this case, the first instance court found the defendant guilty of the crime of quasi-rape. It is not sufficient evidence to acknowledge the crime of quasi-rape.

3) In conclusion, the Majority Opinion confuses the issue of meeting the constituent elements or the issue of meeting the constituent elements and the meaning of the impossibility of occurrence of the consequence under Article 27 of the Criminal Act. If deemed as the Majority Opinion, it is nothing more than the case where a defendant’s act fails to meet the constituent elements of the crime instituted by the prosecutor, and it is impossible to generate the result. As in the instant case, even if the prosecutor fails to prove facts that constitute the constituent elements of the crime prescribed in the applicable provisions stated in the indictment, it may be punished as an impossible attempted crime. Such interpretation theory results in the complete punishment of the principle of legality, which is the basic principle of the modern criminal law, and thus, it cannot be accepted.

D. Nevertheless, the lower court, on the sole basis of the circumstances indicated in its reasoning, determined that the attempted quasi-rape, which is the ancillary charge, was recognized. In so determining, the lower court erred by misapprehending the legal doctrine on impossible attempts under Article 27 of the Criminal Act, thereby adversely affecting the conclusion

For the foregoing reasons, we respectfully dissent from the Majority Opinion.

6. Concurrence with the Majority by Justice Park Sang-ok, Justice Park Jung-hwa, and Justice Kim Seon-soo

We supplement the reasoning of the Majority Opinion and express my opinion on the criticism of the Dissenting Opinion.

A. 1) Penal provisions shall be strictly interpreted and applied in accordance with the language and text, and they shall not be analogical interpretation in the direction unfavorable to the defendant without permission. However, in interpreting penal provisions, the teleological interpretation in light of the legislative intent and purpose, legislative history, etc. of the relevant law shall not be excluded unless it goes beyond the ordinary meaning of the text and text of the law (see, e.g., Supreme Court Decisions 2007Do2162, Jun. 14, 2007; 2009Do13332, May 13, 2010). Furthermore, examining the legislative purpose, overall content, structure, etc. of penal provisions, finding a reasonable interpretation standard to determine or limit the types of acts constituting the constituent elements in light of an ordinary person’s understanding and judgment with the ability to distinguish things, is interpreted and applied, and it does not go against the principle of no punishment without the law (see, e.g., Supreme Court Decision 2001Do3531, Nov. 13, 2001).

2) The Majority Opinion separates impossible attempts and impossible attempts or impossible attempts from impossible attempts, on the basis of the existence of “inability of occurrence of results” as stipulated in Article 27 of the Criminal Act, and distinguishs impossible attempts and impossible crimes from impossible crimes based on “risk.”

A) The form of a crime, which is basically subject to the Criminal Act, meets the objective constituent elements and subjective constituent elements. Among them, the objective constituent elements have committed a certain act or committed a certain infringement on the legal interest that the Criminal Act intends to protect, and the normative causal relationship and objective attribution between such act and the result thereof are recognized. Therefore, an attempted crime under the Criminal Act, like a consummated crime, has an intention to realize a specific constituent element as a subjective constituent element, but the requisite for the establishment of a crime is reduced because it fails to satisfy the objective constituent elements.

B) Article 25(1) of the Criminal Act provides that “A person who attempted to commit an offense shall be punished as an attempted crime if the commission of the offense was not completed or if the commission did not result,” and Article 26 of the Criminal Act provides that “When a person voluntarily ceases his/her criminal act which he/she began or prevents the result of the act which he/she began, the punishment shall be mitigated or remitted.” This is because an attempted crime is punished as a attempted crime or attempted crime, even though there was no occurrence of the constituent consequence of the actual infringement of infringement of legal interests or threats, and it is recognized that there was a possibility of the commencement of the commission and the occurrence of the result. Therefore, even though there was a possibility that the attempted crime or attempted crime was possible, an attempted crime can be said to have been committed, that is, even if there was a possibility of the realization of the constituent elements of the crime.

C) Although an impossible crime originally means a crime committed by a person who had the intent to commit a crime and can be deemed to be the commencement of the commission of an offense, it does not constitute an offense in principle in the absence of possibility of the realization of the constituent elements in light of the nature of the act. However, Article 27 of the Criminal Act provides, “If the occurrence of an impossible crime is impossible due to the means or mistake of the object, the punishment may be mitigated or exempted, but if there is a danger, the punishment may be mitigated or exempted,” and Article 27 of the Criminal Act exceptionally punish an impossible attempted crime. “Impossibility of the occurrence of the consequence” under Article 27 of the Criminal Act does not change depending on whether an impossible attempted crime is an impossible attempted crime as an essential sign, or an impossible attempt or an impossible crime is not committed. Therefore, Article 25(1) and 26 of the Criminal Act provides that “The occurrence of a result” of an impossible crime cannot be interpreted differently from the type of an impossible crime from the beginning, and thus, Article 27 of the Criminal Act does not provide for an impossible attempt.”

D) In a case where the Defendant intending to kill her husband by drinking agrochemicals in the country of the molds, but the Defendant was prosecuted for attempted murder with drinking her husband, the Supreme Court held that the lower court’s approval of attempted murder without hearing whether the Defendant’s act constitutes a certain case (see Supreme Court Decision 83Do2967, Feb. 14, 1984) was unlawful, even though the Defendant should have tried to have tried to distinguish between attempted murder and impossible attempted murder (see Supreme Court Decision 83Do2967, Feb. 14, 1984). In addition, in a case where the Defendant was aware that the Defendant was in the state of mental disorder, but the victim did not actually in the state of mental disorder, the lower court determined that the Defendant’s act was impossible to have caused quasi-rape rape due to the mistake in the subject matter, and the risk was recognized, and thus, it is likely that the impossible attempted rape of quasi-rape was established (see Supreme Court Decision 2015Do7343, Aug. 13, 2015)

The Supreme Court made it clear that disability attempts and impossible attempts are distinguished from disability attempts through these precedents, and that impossible attempts are established even if it is impossible to meet the requirements of the crime since the commencement of the crime.

B. The Dissenting Opinion argues that the crime of quasi-rape is a crime requiring the occurrence of a constituent element and the crime of violation requiring actual infringement of the legal interest and protection of the said legal interest should be determined on the basis of whether sexual intercourse took place, namely, whether the right to sexual self-determination of an individual, which is the legal interest and protection of the said legal interest, has been infringed. As such, as long as the sexual self-determination of the victim was infringed due to sexual intercourse, which is the result of the crime of quasi-rape, the crime of quasi-rape, there is no room for establishment of impossible attempted crime. Furthermore, the Dissenting Opinion argues that the Dissenting Opinion is confused

1) The crime of quasi-rape under Article 299 of the Criminal Act leads to the occurrence of constituent results when having sexual intercourse with a person in a state of mental or physical disability or impossibility to resist. The act of having sexual intercourse with a person who is not in a state of mental or physical disability or impossibility to resist is not an object of the crime of quasi-rape, or an act which is not a constituent element, and thus, does not constitute the crime of quasi-rape even if the sexual intercourse was committed. If the victim was aware that the victim was in a state of mental or physical disability or impossibility to resist, and the victim had sexual intercourse with the intent to have sexual intercourse by taking advantage of such state, but the victim did not actually have sexual intercourse with the intent to have sexual intercourse, it is a matter of whether the crime of quasi-rape was impossible to commit the crime of quasi-rape, since there was no possibility that the elements of the crime would be met at the time of commencement of the commission or mistake of the crime, and thus there was no possibility

2) The Dissenting Opinion argues that the “competence” itself is the constituent consequence of the crime of rape and quasi-rape, but this is contrary to the criminal law system that separates the crime of rape and the crime of quasi-rape. In the crime of rape and the crime of quasi-rape, the infringement of the right to sexual self-determination, which is the legal interest of the crime of rape, does not arise only by the act of sexual intercourse, but only by combining with the act of a separate perpetrator who infringes on the victim’s right to self-determination, or the situation of the victim. Therefore, the Dissenting Opinion appears to have confused between

C. The Dissenting Opinion argues that, since the object of the act of quasi-rape is “human”, the Defendant cannot be deemed to have any mistake in the subject matter in this case, and that the subject matter of the act is “a person in a state of mental or physical disability or impossible to resist,” it goes beyond the scope of the text of the penal provision. In addition, the Dissenting Opinion did not explain in what respect the means of the commission

1) Part II of the Criminal Act provides for "rape and indecent act" in Chapter 32 of the same Act. The object of the act stipulated in the crime of rape (Article 297) is "person or a person with mental disability" or "person under 13 years of age" and the object of the act stipulated in the crime of sexual intercourse with a minor (Article 302 of the Criminal Act) is "a person under 13 years of age". On the other hand, the crime of quasi-rape stipulated in Article 299 of the Criminal Act is an offense of having sexual intercourse with a person's mental disability or state of non-performance. The term "use" means that the offender is aware of the person in a state of mental disability or non-performance, and thus, the object of the act should be "a person in a state of disability or non-performance." Since the object of the act should be "a state of disability or non-performance" in the crime of quasi-rape, it shall not be interpreted that the object of the act is "a person in a state of disability or non-performance."

2) “Misundertake of the means of quasi-rape” under Article 27 of the Criminal Act refers to the impossibility or inconsistency of the means that the occurrence of the result is impossible from the beginning by the actor as the means of action attempted by the actor. “Misundertake” refers to the impossibility or inconsistency of the object that the object of the act attempted by the actor cannot be subject to the requirement of the crime. As seen above, the object of the crime of quasi-rape is “a person in a state of mental or physical disability or non-performance,” and the act constituting the element thereof is “Sexual by taking advantage of the state of mental or physical disability or non-performance.” Although it is the nature of the object, the fact that the victim is in a state of mental or non-performance in the crime of quasi-rape is in a state of mental or physical disorder, it is also the premise of the means of action. However, even though the victim has sexual intercourse with the victim knowing that it was in a state of mental or non-performance, the victim does not have any possibility of being able to commit the crime of quasi-rape from the point of action.

D. According to the Majority Opinion, the Dissenting Opinion leads to the conclusion that an act that does not meet the requirements for a crime always becomes an impossible crime and may be punished as an attempted crime if it is dangerous, and such interpretation may lead to the full punishment of the principle of no punishment without the law. However, the Dissenting Opinion’s criticism is unreasonable for the following reasons.

1) The majority opinion does not mean that an impossible attempt is established with respect to all the constituent elements of a crime, but it should be determined whether an impossible attempt under Article 27 of the Criminal Act has been punished, only if it cannot be satisfied from the beginning due to the means of action or mistake of the target.

2) Impossibility of impossible attempts under the Criminal Act, like other attempted crimes, must have an intention to realize a specific constituent element as a subjective constituent element, and this is also adequate for dolusent intent. These subjective constituent elements are criminal facts and require strict proof without reasonable doubt. In a case where the prosecutor’s proof does not reach the extent that it would lead to a sufficient conviction, the interest of the defendant should be determined (see, e.g., Supreme Court Decisions 2012Do231, Jun. 28, 2012; 2017Do12649, Dec. 22, 2017). If the defendant cannot be found as a subjective constituent element of a crime, it is not necessary to review whether an impossible attempted crime from the beginning to the point of view if the defendant cannot be found as a subjective constituent element of a crime.

3) Article 27 of the Criminal Act provides that, even if the occurrence of a result is impossible due to the means of execution or mistake of the subject matter, punishment shall be imposed if there is a danger, and exceptionally, the establishment of an impossible attempt is recognized. The Majority Opinion does not purport to recognize impossible attempts only in cases where the requirements for establishment of impossible attempts are satisfied, but rather, in cases where impossible attempts can be established due to other reasons than mistake of the means of execution or mistake of the subject matter, or where there is no danger.

4) Article 29 of the Criminal Act provides that “The punishment for attempted crimes shall be prescribed in each Article,” and an attempted crime shall be punished only when there is a penal provision, and impossible attempted crimes shall be punished only when there is a danger as provided in Article 27 of the Criminal Act.

5) Therefore, it cannot be deemed that the logic of the Majority Opinion is the principle of no punishment without the law.

E. Article 13 of the Criminal Act provides, “Act performed through ignorance of the facts which comprise the constituent elements of a crime shall not be punishable.” Here, the term “fact that constitutes the constituent elements of a crime” refers to an objective constituent element, which is an external mark, under the Criminal Act, under the Criminal Act, such as an act, subject, object, object, act, result, etc., is consistent with the majority opinion and the dissenting opinion.

However, the Dissenting Opinion argues that an impossible attempt is not an “means or mistake of the object” of the instant case, and thus, it is not an issue and simply not guilty. If the meaning of “ impossible consequence due to mistake of means or object” under Article 27 of the Criminal Act premised on the Dissenting Opinion was known to be the requirement for impossible attempt under the premise of the Dissenting Opinion, and only refers to cases where a person is not a person actually aware of the existence of such meaning, etc., the victim’s sexual intercourse with the intent to report the victim used by the Defendant, or to have sexual intercourse with the victim, recognizing that the victim was in the state of mental or physical disability or non-performance, but the victim had already died at the time of commencement of the commission of the commission of the crime. However, the impossible attempt of quasi-rape is established if the victim was still alive but the victim did not have actually been in the state of mental or physical disability or non-performance. This conclusion is difficult in view of the following points: (i) insofar as the Defendant began to have sexual intercourse with the victim with the intent of quasi-rape, whether the victim died or non-rape was alive or has no possibility.

As above, I express my concurrence with the Majority Opinion.

7. Concurrence with the Majority by Justice Min You-sook and Justice Noh Jeong-hee

A. The instant case pertains to the case in which only the Defendant appealed on the fact that the lower court recognized the impossible attempt to commit the crime of quasi-rape. Therefore, whether the crime of quasi-rape is established is not subject to the judgment of the Supreme Court, but the issue is whether the impossible attempt is established. The foregoing premise is premised on the foregoing concurring opinion with the Majority regarding the disability attempted and impossible attempts, the distinction between impossible attempts and impossible attempts, the issue of meeting the elements of the crime of quasi-rape, and the relationship between the impossibility of occurrence of the consequence, etc.

B. As to the intention of quasi-rape and the commencement of the commission

1) An impossible attempted crime is a form of an attempted crime, and the establishment of an attempted crime requires intention and commencement of commission, and requires the failure to complete the crime.

2) Article 299 of the Criminal Act provides for the punishment of “a person who has sexual intercourse with another person by taking advantage of his/her mental disorder or state of failing to resist.” “a person who has sexual intercourse” means a state in which judgment on sexual conduct cannot be made due to mental disorder or food disorder, and “non-conformity” refers to a state in which psychological or physical resistance is impossible or substantially difficult due to reasons other than mental disorder. The term “use” refers to a state in which the victim is unable or substantially difficult to resist, and the victim is aware that he/she is in the state of mental disorder or failing to resist and facilitate sexual intercourse. Therefore, the intention of quasi-rape refers to a situation in which the victim is aware that he/she is in the state of mental disorder or failing to resist, and it is recognized that the victim was aware that he/she was in the state of mental disorder or failing to resist, and that

3) The commencement of the commission of a crime is recognized at the time of commencement of the act that constitutes the constituent element or the act closely related to the constituent element. For example, in the crime of quasi-rape, for instance, the crime of quasi-rape has commenced an act that has the intent to engage in sexual intercourse with the victim's sexual organ, etc. taking advantage of the victim's state of refusal to resist and taking advantage of the victim's sexual organ at the time when the victim committed an act in which the victim's sexual organ, etc. was taken out, and may be deemed to have commenced the commission of the crime of quasi-rape (see Supreme Court Decision 9Do5187, Jan. 14, 200). In the above case, the Supreme Court held that the crime of quasi-rape does not interfere with the establishment of the crime of attempted quasi-rape even in a case where the

4) As examined in the Majority Opinion, the Defendant’s assertion that there was no intention to quasi-rape in the instant case is without merit. In addition, in light of the facts duly admitted by the evidence duly admitted by the lower court, it can be sufficiently recognized even if the Defendant committed an act that can be seen as the commencement of the commission of quasi-rape. Although the Dissenting Opinion does not explicitly express, it appears that the Defendant’s act is premised on this. Accordingly, insofar as the Defendant’s act does not constitute an impossible crime, it should be deemed that the Defendant’s act constitutes

C. As to whether sexual intercourse and the establishment of an attempted crime are reasonable

1) Nevertheless, the Dissenting Opinion argues that filing a question about the establishment of an attempted crime itself would lead to the fact that there was sexual intercourse in this case. A summary of this part of the Dissenting Opinion’s argument is as follows. The constituent elements of sexual intercourse in this case have occurred, and the victim’s sexual self-determination was infringed due to sexual intercourse. Therefore, it does not constitute a case where the occurrence of a result under Article 27 of the Criminal Act is impossible, and it does not constitute a problem in the area of attempted crimes.

As can be seen, the Dissenting Opinion argues that the establishment of an impossible attempt is not established even though the consequence of the constituent elements has occurred, and it is silent as to whether the impossible attempt is established or not. In order to point out the logical inconsistency of the Dissenting Opinion, first, we examine the relationship between sexual intercourse and the establishment of a crime.

2) In the Korean language, the meaning of “sexual intercourse” or “sexual intercourse with a person other than his/her spouse,” is understood as having reached the meaning of “sexual intercourse.” As can be seen, the term “sexual intercourse” includes negative contents, but it is general to view that it does not extend to the meaning of the sexual relationship against the coercive element or the other party’s explicit or presumed intent. Therefore, immediately linking sexual intercourse with the infringement of the right to sexual self-determination requires distinction as it causes confusion as to the outcome of the act or the infringement of legal interests and interests and interests. Examining the elements of the crime of rape or quasi-rape on this premise, the crime of rape or quasi-rape is not to punish itself, but to punish the crime of rape when sexual intercourse was committed in a way that infringes on the victim’s sexual self-determination by assault or intimidation. Accordingly, even if the Defendant had sexual intercourse with the objective or intended intent, it cannot be said that the crime of rape or quasi-rape should not be committed if the victim’s sexual intercourse or non-rape was not made by assault or threat.

As such, the case where the number of crimes is denied due to the lack of causation despite the fact that the defendant had attempted to achieve the objective or intent of the crime is often discussed in the crime of extortion or fraud. If the crime of extortion committed intentionally assault or intimidation but did a disposal act for another reason without actually spreading the victim, the defendant would have obtained the intent to acquire property, but the crime of extortion is not considered to have been committed. Even in the case of fraud, if the defrauded committed deception with the intent of deception but the victim did not go through mistake, but provided property for other reasons. This is because the causal relationship between the defendant's assault, intimidation, etc. and the victim's disposal act is denied. In the crime of rape and quasi-rape, even if the result of the defendant's desire to commit the crime of rape and the crime of quasi-rape, an attempted crime may be established due to the lack of causal relationship. The elements of a crime not completed refer to the occurrence of the result, and the purpose of the crime is not determined by whether the offender achieved that purpose.

3) Furthermore, inasmuch as sexual intercourse has not been committed by the Defendant’s assault or intimidation or by using the state of mental or physical disorder or impossible failure, there is no infringement of the victim’s right to sexual self-determination, or there is no risk of infringement, and thus, an attempted crime cannot be established. However, we need to go back to the question whether such doubt is based on the prejudice that it is impossible to compel the victim to sexual intercourse without using the state of assault or intimidation to the extent that it is impossible or significantly difficult to resist or make it difficult.

In the context of quasi-rapeing, where it is absolutely impossible or considerably difficult to resist “the state of resistance” in the crime of quasi-rape, the crime of quasi-rape is established in a balance with the view of the least consultation that requires the strict degree of assault and intimidation (see, e.g., Supreme Court Decision 2009Do2001, Apr. 23, 2009). Moreover, the long-term grounds for limiting the degree of assault and intimidation by consultation is that it is impossible to rape against the victim’s will, unless the victim voluntarily interpreted the victim’s intention, and if the victim did not oppose the victim’s death, it is considerably different from the weak conclusion that the victim consented to his/her sexual relationship and that there is no infringement of the victim’s sexual self-determination right. In ordinary circumstances, we can not see that the victim’s act of assault and intimidation is unreasonable and unreasonable, and that there is no possibility that he/she could not be sexual intercourse, unlike the victim’s act of attack, if it is objectively and sufficiently unreasonable.

In the instant case, as seen above, only the establishment of an impossible attempted quasi-rape is the key issue of the instant case. Therefore, even though it is objectively impossible for the victim to have sexual intercourse taking advantage of the victim’s state of impossibility to resist due to the Defendant’s mistake, if there was any danger in the course of objectively evaluating the circumstances perceived by the Defendant at the time, the establishment of impossible attempted quasi-rape is recognized. This is affirmed even in a case where the Defendant intentionally commenced the commission of quasi-rape but does not reach sexual intercourse. However, if there was no risk of infringing the victim’s sexual self-determination on the part of the fact that the sexual intercourse was realized by the Defendant’s desire, this would be a prior interpretation. In conclusion, the interpretation of the Majority Opinion based on the elements of the crime of quasi-rape and the requirements for impossible attempted quasi-rape pursuant

As above, I express my concurrence with the Majority Opinion.

Justices Jo Hee-de (Presiding Justice)