정당방위의 자경주의 요인에 대한 법철학적 연구: 홉스의 사회계약설에 기초하여

Abstract

In modern society in the 21st century, the need to expand self-defense is greater than before as individualization is accelerating and interpersonal relationships become more non-face-to-face. Nevertheless, the Korean Government belongs to a category that does not recognize self-defense in terms of the worldwide range and insists on the principle of monopoly of governmental power. This paper examines the vigilante factors of self-defense and analyzes the relationship with the principle of monopoly of public power based on Thomas Hobbes' social contract theory in a legal philosophy. To this end, the research trend on the relationship between self-defense and public power is reviewed by the precedent that recognized self-defense and previous studies on the relevance of the act. Next, as a discussion to reasonably expand the scope of the relevance of self-defense, the factors of vigilance implied in the act are explored and compared with the monopoly of public power regarding the considerableness of self-defense. Next, this paper critically discusses the factors of vigilance based on Hobbes' social contract theory, which is said to be the source of public power monopoly. As a result, it is argued that the environment and personal character of the actor should be added to the private delegation of public power based on the type and degree of infringement legal interests, the method and degree of progress in infringement, and the type and degree of legal interests to be infringed by defense activities. And, although Hobbes argues that the state should monopolize public power in order to perpetuate the preservation of life of the people, it is interpreted as a pursuit of the freedom democracy of the sovereign people. Individuals and groups' vigilant actions can be regarded as civil and police cooperation to supplement or make up for the state's function, and the significance of self-defense can also be judged on this basis. Finally, this study anticipates the formation of legal philosophical discourse on the significance of self-defense and the expansion of the recognition rate, and at the same time, the criteria and methods for setting up self-defense when the structure of state agencies such as the police is possible are left as follow-up studies.