미수범의 처벌근거로서 인상설의 한계와 그 대안

There has traditionally been a conflict between objective theory and subjective theory as grounds for punishing criminal attempts that did not actually result in any crime. However, today, impression theory - that is, a combination of both objective and subjective theories - is gaining popularity in Germany and Korea. Impression theory seeks to establish grounds for punishing attempted crime by combining the manifestation of criminal intention put forth by the subjective theory with the impression of disturbance of the law left upon the world. However, because of its excessive dependence on the subjective theory and the ambiguous objective index of ‘law-disturbing impression’impression theory has failed to clearly explain grounds for punishing criminal attempts. Also, because there is no systematic criminal character granted to the core concept of ‘law-disturbing impression’this cannot be considered a factor of illegality solely applied to criminal attempts. Because the impression theory cannot find an appropriate compromise between subjective and objective theories, alternatives can be reviewed in two areas. The first is a modified subjective theory, such as criminal theory and the expression theory of rule violation. However, these theories, much like subjective theory, fail to provide an appropriate standard for establishing the boundaries of punishable criminal attempts. The second is a review of objective theory. This does not mean regressing to the objective theory. This means that the ‘direct risk in the violation of legal interests’put forth by objective theory, which was considered rendered obsolete by the introduction of ‘personal illegal theory’should be combined with the ‘manifestation of criminal intentions’put forth by subjective theory to establish grounds for punishing criminal attempts. The problems of subjective or impression theory suggest a valid direction for theoretical development, in that, they can only be resolved by implementing objective standards for explaining the illegal results of criminal attempts. However, unlike the rules of criminal attempt established in German criminal law, Article 27 of the Korean Criminal Law defines the risks involved in the results by categorizing them into incomplete attempts that are punishable and dangerous, and incomplete attempts that are neither punishable nor dangerous. It would be best to accept these as grounds for punishment as well as objective composition requirements for all types of criminal attempts.