형법상 정당방위의 요건에 대한 비판적 이해 (A Study on the Requirements of Self-Defense in Korean Criminal Act)

서지정보

· 발행기관 : 충북대학교 법학연구소
· 수록지 정보 : 법학연구 / 28권 / 2호 / 445 ~ 467페이지
· 저자명 : 신동일, 김나경

초록

According to Article 21 (1) of Korean Criminal Act, “An act which is performed in order to prevent impending and unjust infringement of one's own or another person's legal interest shall not be punishable if there are reasonable grounds for that act”. The Korean courts have provided a very comprehensive standard for a “resonable grounds” and the criteria for “resonable grounds” are not very different from the social norms set forth in Article 20 of the Criminal Act. Such interpretation could not only jeopardizes the principle of the rule of law, it also makes it more difficult to recognize the self-defense and may result in weakening the original meaning of the illegality-justifying grounds including self-defense. From the history and discourses on the interpretation of self-defense, it can be seen that the limitation on self-defense is already achieved through the first proposition, which prescribes the 'impending and unjust infringement' requirement. In the history of legal justification of self-defense, there was no limitation in the act for self – protection, and when discussing the right of self-defense in the modern age, the restriction of the self-defense was made based on the principle of protection of the law.
The requirement of 'impending infringement' is also proposed to overcome the custom of recognizing a preventive defense or post defense as a self-defense by overextending the possible time range of defensive actions. If so, how could we understand the requirements of self-defense in criminal law? The basic requirements of self-defense – the subjective defense intention of the agent, the appropriateness of the defense action and the time suitability of the defense action – are already sufficiently stipulated in the first half of Article 21 (1) of the Criminal Act. There is a risk that the extent of self-defense is limited excessively when these requirements are nevertheless restricted comprehensively through “resonable grounds”, when “resonable grounds” are interpreted as a requirement for the court to deny the established self-defense once again. In this context, interpreting “reasonable grounds” as repetition of the requirements of the first half of Article 21 (1) of Criminal Law or changing it through criminal law amendments in a way that does not cause confusion may also help to eliminate the contradictions that have arisen in self-defense interpretation.

영어초록

According to Article 21 (1) of Korean Criminal Act, “An act which is performed in order to prevent impending and unjust infringement of one's own or another person's legal interest shall not be punishable if there are reasonable grounds for that act”. The Korean courts have provided a very comprehensive standard for a “resonable grounds” and the criteria for “resonable grounds” are not very different from the social norms set forth in Article 20 of the Criminal Act. Such interpretation could not only jeopardizes the principle of the rule of law, it also makes it more difficult to recognize the self-defense and may result in weakening the original meaning of the illegality-justifying grounds including self-defense. From the history and discourses on the interpretation of self-defense, it can be seen that the limitation on self-defense is already achieved through the first proposition, which prescribes the 'impending and unjust infringement' requirement. In the history of legal justification of self-defense, there was no limitation in the act for self – protection, and when discussing the right of self-defense in the modern age, the restriction of the self-defense was made based on the principle of protection of the law.
The requirement of 'impending infringement' is also proposed to overcome the custom of recognizing a preventive defense or post defense as a self-defense by overextending the possible time range of defensive actions. If so, how could we understand the requirements of self-defense in criminal law? The basic requirements of self-defense – the subjective defense intention of the agent, the appropriateness of the defense action and the time suitability of the defense action – are already sufficiently stipulated in the first half of Article 21 (1) of the Criminal Act. There is a risk that the extent of self-defense is limited excessively when these requirements are nevertheless restricted comprehensively through “resonable grounds”, when “resonable grounds” are interpreted as a requirement for the court to deny the established self-defense once again. In this context, interpreting “reasonable grounds” as repetition of the requirements of the first half of Article 21 (1) of Criminal Law or changing it through criminal law amendments in a way that does not cause confusion may also help to eliminate the contradictions that have arisen in self-defense interpretation.

참고자료

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