도둑뇌사사건을 통해 본 과잉방위의 의미와 인정기준

• 영문명: Excessive Self-Defense
• 발행기관: 한국형사판례연구회
• 저자명: 김정환(KIM, Jong Hwan)
• 간행물 정보: 『형사판례연구』형사판례연구 제28권, 1~59쪽, 전체 59쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2020.06.30

영문 초록

The point of contention was whether the defendant’s act of selfdefense could be rightfully seen as a self-defense and whether the consecutive self-defense makes the unjust current infringement situation continuously available. The stated case did not see the defendant’s action as one action but had divided the action of self-defense as ‘Initial Assault’ and ‘Additional Assault’, and ruled that the infringement was terminated after the initial assault. Therefore, the Supreme Court considered the defendant’s additional assault as an active act of aggression and refused to recognize it as an excessive self-defense, which could have reduced the level of penalty. The issue of excessive self-defense should be considered with the understanding that the situation of self-defense was within the scope of conducting the right of self-defense, therefore should be judged based on the existence of ‘equal self-defense situation’. Only in the presence of a ‘totally identical defense situation’ can the defendant’s actions constitute self-defense as a whole. In this case, the additional assault cannot be considered as being infringed of the current unjustly, such as having no imminent danger of serious body injury or death, thus, the defendant’s additional assault does not constitute excessive self-defense providing alleviation to its penalty. Also, the Supreme Court judged that in cases where excessive self-defense (Article 21, clause 2 of the Criminal Act) is due to fear, shock, excitement or embarrassment at night or other unstable conditions, the act cannot be punished (Article 21, clause 3 of the Criminal Act). Judging from the wording or system of Article 21 of the Criminal Act, it is not clear whether the acts prescribed by Article 21 (3) belong to excessive self-defense or self-defense. However, if you check the data at the time of enactment, it can be confirmed that it’s for the excessive self-defense as clause 3 is a mitigation provision for the case in clause 2. And while the clause 1 which prescribes the right of self-defense stipulates self-defense around the ‘action’, Article 21 clause 3 of the Criminal Law presents the psychological state of ‘actors’ as a requirement, therefore Article 21 (3) cannot be seen as a type of self-defense. In addition, the stated case referred to the existing Supreme Court ruling, explaining that the criterion for distinguishing between self-defense and excessive self-defense is ‘objectively reasonable fore’ and limitation to the excessive self-defense is dependent on the ‘socially acceptable action of defense’. The interpretation of ‘objectively reasonable force’ is natural when referring to the in the literacy statements of Article 21 (1) and (2) of the Criminal Law. Self-defense means an ‘objectively reasonable’ case of defense action, and it is reasonable to distinguish excessive self-defense as an excess of the degree of defense action. Given the reasons for recognizing self-defense and the regulatory system under Article 21 of the Criminal Act, it is reasonable to interpret strictly whether it constitutes an action of objective and reasonable defense.Finally, the Supreme Court referred to the existing Supreme Court ruling and stated in the reason for the ruling that an act of excessive self-defense is limited to ‘socially acceptable action of defense’. According to Article 21 (1) and 21 (2), ‘excessive self-defense, which reduce or exempt the sentence’ is an act of self-defense which occurred under the circumstances that there is an unfair infringement of the current and the act of self-defense, although it is excessive, has ‘no probable cause but the situation’ allows alleviation of penalty. The law states the limitation to the excessive self-defense is the ‘situation’ not the ‘socially acceptableaction of defense’. The supreme Court seems to have used ‘socially acceptable action of defense’ as a criterion for judging ‘situation’.

목차

[대상판례] 서울고등법원 2016.1.29. 선고 (춘천)2015노11 판결(대법원 2016.5.12. 선고 2016도2794 판결)

[연구]

Ⅰ. 도입말

Ⅱ. 도둑뇌사사건에 대한 문헌

Ⅲ. 양적 과잉형태의 과잉방위에서 다수행위의 구분

Ⅳ. 형벌감면적 과잉방위(형법 제21조 제2항)와 불가벌적 과잉방위(형법 제21조 제3항)의 관계(불가벌적 과잉방위의 의미)

Ⅴ. 정당방위와 과잉방위의 구분기준인 상당한 이유

Ⅵ. (형벌감면적) 과잉방위의 한계기준인 정황

Ⅶ. 맺음말

키워드

정당방위 과잉방위 도둑뇌사사건 상당성 사회통념상 방위행위 정황 self-defense excessive self-defense socially acceptable action of defense objectively reasonable fore