초록 열기/닫기 버튼
정당방위의 성립요건인 상당성의 해석에 있어서 상당수의 학자들이 “필요성”과 아울러 “사회윤리적 제한”을 주요하게 다루고 있다. 하지만 우리나라는 독일과 문화적·법률적 전통이 다르므로 독일에서 말하는 “사회윤리적 제한”이라는 개념을 그대로 우리 형법의 상당성 여부 판단에 적용하는 것은 무리가 있다고 할 것이다. 결국 정당방위의 상당성 판단은 침해행위와 방위행위의 행위반가치와 결과반가치의 비교형량에 의하여 결정되어야 한다고 생각한다. 따라서 본 논문에서는 판례를 중심으로 방위행위의 수단·방법의 상당성과 상대적 법익균형성에 관하여 중점적으로 검토함으로써 정당방위의 상당성의 구체적인 판단기준을 모색하였다. 우리법원은 지나치게 정당방위의 인정에 인색한 경향을 보이고 있고, 이에 대한 판결 이유도 대단히 추상적으로 되어 있는 경우가 대부분이다. 앞으로는 수사기관과 법원이 정당방위 사건에 대한 적극적이고 치밀한 분석·판단을 함으로써 정당방위 행위자가 억울하게 가해자가 되어 처벌받는 일이 없도록 하여야 할 것이다.
Korean Criminal Act provides "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 is the reasonable ground for that act"; the reasonable ground is required to establish self-defense. Several scholars understand the resonable ground as including necessity and societal and ethical limitation. However, because Korea has different cultural tradition and status of maintaining law and order from Germany, it is hard to apply the concept of societal and ethical limitation to judgment of reasonableness in Korean Criminal Act as it is. Moreover, if the societal and ethical limitation is applied, there may be a strong possibility that it is understood for recognition of self-defense to be restricted as far as possible. Accordingly, it is plausible that the concept of societal and ethical limitation is not used at all. Judgement of the reasonableness in self-defense is to seek where the criterion satisfying principles of self-protection and legal system protection, the ground of self-defense, is; it must be decided in balancing act disvalue against result disvalue of attack and defensive response. Therefore, the actual criterion to decide reasonableness seems to be the reasonableness of defensive force and the relative balance of legal interests. First of all, because, in contrast to the defense of necessity, self-defense does not require strict balance of legal interests, the most critical criterion of self-defense judgment will be reasonableness of defensive force. That is, it is definitely important for used force to be proportionate and reasonable to attack satisfying the doctrine of least defense; the doctrine of equivalent force used between attack and defense may apply to decide satisfaction of least defense doctrine. However, actually, in considering general circumstances including details of attack, mens rea of an attacker, the degree of used force etc. at the time of defensive act, the equivalence of used force must be decided based on whether used force is permissible in society. Such a decision sometimes demands meticulous review and analysis on facts including sex, relationship, build etc. In the second place, a balance of violated legal interests must be considered. Even though self-defense is to defend against unjustified attack, it is unreasonable to intrude important legal interest in order to protect slight legal interest pursuant to the balance doctrine. Accordingly, the relative balance between intruded interests caused by attack and defensive response must be maintained. However, even if under emergent circumstances, important legal interest is unexpectedly violated by defensive act, reasonableness may be recognized considering general circumstances including reasonableness of used force. Because courts rarely recognized self-defense and the reasons of their decisions were usually too abstract and general, it was often hard to apprehend the intent of their judgments correctly. Furthermore, even though self-defense could be established, justifiable act was found avoiding recognizing self-defense. What was worse, there were cases making ambiguous results that either self-defense or justifiable act could be established. In my opinion, in future, courts can contribute to protection of civil rights resolving appropriately self-defense cases only if they correctly judge satisfaction of self-defense elements in precisely analyzing facts.
키워드열기/닫기 버튼
self-defense, reasonableness, necessity, supplement, balance of legal interest
