미국의 정당방위 성립요건인 합리성의 해석론 - 합리적인 인간 기준과 합리적인 매 맞는 여성 기준의 의미 (Self-defense and battered women standard)

서지정보

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초록

Is a battered woman justified if she kills her tormenter when he is not
attacking her? Should courts permit her to assert the defense of
self-defense? There is no imminent threat in nonconfrontational
circumstances, and she is regarded as a reasonable person who has the
capacity to choose freely whether to kill her abuser. Therefore, it would
be very hard to legalize the killing of abusive husbands by their wives
in nonconfrontational cases if we stick to the traditional view of
self-defense. But in recent years a few argue that different rules should
be applied to battered women who kills their partners before or after a
beating, or, when her abuser was asleep, because traditional self-defense
law ignores the reality of battered women. They say that the object
element of self-defense must be evaluated by considering how a
reasonable battered woman would have perceived the situation.
Apparently they are relying on the battered woman syndrome which is
introduced by Lenore Walker in the USA, but have never examined if
the BWS theory is scientifically accepted or the battered women
standard based on the BWS theory can be adopted in applying korean
self-defense law without any theoretical problem. Korean criminal law
never uses such concepts, so it must be discussed in advance whether
battered women standard as well as the BWS theory can be properly
integrated into already existing korean criminal law system. This article
traces the development of the U.S. self-defense law and presents an
overview of how the notion of reasonableness has changed in applying
the U.S. self-defense law.

영어초록

Is a battered woman justified if she kills her tormenter when he is not
attacking her? Should courts permit her to assert the defense of
self-defense? There is no imminent threat in nonconfrontational
circumstances, and she is regarded as a reasonable person who has the
capacity to choose freely whether to kill her abuser. Therefore, it would
be very hard to legalize the killing of abusive husbands by their wives
in nonconfrontational cases if we stick to the traditional view of
self-defense. But in recent years a few argue that different rules should
be applied to battered women who kills their partners before or after a
beating, or, when her abuser was asleep, because traditional self-defense
law ignores the reality of battered women. They say that the object
element of self-defense must be evaluated by considering how a
reasonable battered woman would have perceived the situation.
Apparently they are relying on the battered woman syndrome which is
introduced by Lenore Walker in the USA, but have never examined if
the BWS theory is scientifically accepted or the battered women
standard based on the BWS theory can be adopted in applying korean
self-defense law without any theoretical problem. Korean criminal law
never uses such concepts, so it must be discussed in advance whether
battered women standard as well as the BWS theory can be properly
integrated into already existing korean criminal law system. This article
traces the development of the U.S. self-defense law and presents an
overview of how the notion of reasonableness has changed in applying
the U.S. self-defense law.

참고자료

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