영미형법에 있어 정당방위의 구조

Abstract

The self defense is the area that is largely affected by a particular country's or a society's culture. Even though Anglo-American legal system and continental legal system are different from each other, they are in the same western tradition in terms of location and culture. Both system has a broad scope of application of self-defense rules, whereas in our system korean supreme court does not seem willing to expand the applicable scope of self-defense. Like this, the rules of self defense is the products of history and culture. Therefore, it varies depending on time and place. The target of comparative method in this paper is to draw better understanding of our self-defense rules by comparing and contrasting it with those outside of us. Under this aim, we will see through the self defense system in Anglo-American criminal law. That is, by examining the way of understanding self defense, the structure of it, the legal consequence of it, we will try to find out what will be This article focuses especially on the issues justifications and excuses(especially self-deffense) in Anglo-American criminal system. Also, my own study has been to emphasize on the structure of self-deffense so as to provide the relevant information of Anglo-American system which will be substantial concerns of Korean scholar, especially those who deal with comparative research. In addition, the other purpose of this paper is to provide the basis of new perspectives on defense issues for further discussion of our own system. Most issues regarding the application of defensive force arise in the context of homicide and attempted murder prosecutions. Therefore, this article primarily is about the question of when deadly force may be used in self-deffense. The defense of self-deffense contains: (1) a "necessity" component; (2) a "proportionality" requirement; and (3) a reasonable-belief rule that overlays the defense. For the analysis of American doctrines of defense, I mainly refer to the Model Penal Code. The Model Penal Code is a statutory type of proposed statute which was developed by the American Law Institute (ALL) in 1962. The purpose of the MPC was to stimulate and assist many states' legislatures in making an effort to update and standardize the penal law of the United States. The Model Penal Code is not the actual law in most of jurisdictions of the United States. Nonetheless, at least 37 states have adopted revised version of the Model Penal Code.