한국과 중국의 위법성조각사유에 대한 비교법적 소고

Abstract

An ancient scholar analyzed “Self-help in the Roman law was initially authorized, in next step prohibited, in these days permitted in limited circumstances.” With this changes, the scholar came to the conclusion that self-help as a emergency measure was allowed all the time when a rightful person can’t apply for judicial protection. Self-defense, necessity and self-help are the individual’s emergency actions if the country could not help individual. Therefore, we can call these actions rescue by individual’s power in emergency situations, by not governmental authority. As a result, it is not possible that a state put in action the police power when an individual is at a crisis constantly although the system of state is complete. A person should stand on the defensive by oneself if not police is at the place when the person fall into crisis. At present time, Korean criminal law and Chinese criminal law allow emergency actions as justifications. So, I think that the legislators of China and Korea are aware of practical limitations that the state can not help the person at the crisis all the time. However, the unlimited self-defence of China criminal code has a risk that the government imputes the government’s responsibility for prevention of crimes and the protection of each individual person’s legal interest from crimes to the people, and thus I think that the unlimited self-defence should be revised urgently.