긴급피난 규정으로서 「형법」 제22조 제1항과 「민법」 제761조 제2항의 관계

Abstract

The article 22 (1) of the Criminal Act states that “An act which is performed in order to avoid impending danger against the one’s own or another person’s legal interest shall not be punishable when there are reasonable grounds” under the title of ‘Necessity.’ Being related to ‘Necessity,’ in addition, the Civil Act regulates ‘Self-Defense and Act of Necessity’ as article 761. The article 761 (1) states that “A person who, in order to protect his own interest or that of a third person against an unlawful act of another, unavoidably causes damages to another person shall not be liable for such damages: Provided, That the injured party may claim for damages in respect of the unlawful act” and the article 761 (2) states that “The provisions of paragraph (1) shall apply mutatis mutandis where a person unavoidably caused damages to another person in order to avert an imminent danger.” The rule for ‘Necessity’ is the article 761 (2), of course. Though it is reasonable to recognize an act of necessity as a fact barring illegalitywhich inhibits constitution of a crime, questions arise about forcing victims who have no cause attributable to the danger to bear the damages caused by an actor of necessity under civil law. There is a need to reestablish a relationship between the Criminal Act article 22 (1) and the Civil Act article 761 (2) by considering the following points. First, a justifiable cause recognized in each individual law system should be considered to have an effect only within the scope of the individual law. Secondly, not only the criminal trial procedures and the civil trial procedures are strictly separated, but also the principles of criminal law and civil law are very different from each other. Lastly, It is necessary to consider the supplementary nature of criminal law. In other words, criminal law should be applied as a last resort compared to other laws, including civil law. To conclude, the article 761 (2) of the Civil Act, which stipulates acts of necessity as a justifiable cause under the Civil Act, should be deleted or revised to make actors of necessity liable for damages in principle.