미국의 정당방위 성립요건인 합리성의 해석론 - 합리적인 인간 기준과 합리적인 매 맞는 여성 기준의 의미
Self-defense and battered women standard
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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.
Abstract
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.
참고문헌 (32)
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