절도범을 제압하기 위한 폭행이 방위행위로서의 한도를 넘어섰다고 본 사례 - 춘천지방법원 원주지원 2014. 8. 13. 선고, 2014고단444 판결 -

Abstract

This case is an inferior court decision that dealt whether battery to overpower a thief is considered self-defense. The defendant of the case claimed that his action is considered self-defense or excessive defense because it happened during the process of overpowering a thief. However, by identifying the fact that the defendant heavily battered the victim’s head when he made no resistance and only tried to escape, and also the fact that the victim eventually fell into persistent vegetative state, the court ruled that the defendant’s action was morally unacceptable and thus can neither be a self-defense nor an excessive defense. As such, in the background of this decision rejecting the assertion of excessive defense as well as self-defense lies the judgment that the defendant’s action is not acknowledged as a defensive action but rather taken to be an offensive action. Following the conclusion above, this paper tried to examine the mechanism of the denial of the establishment of a defensive action. Considering this case, the defendant’s action violated the requirement of necessity because it is thought that a less violent retaliation was still able to sufficiently protect his legal interests. Furthermore, his actions have far exceeded the minimally needed degree of defense and are thus considered a serious violation of the necessity requirement. Therefore, this paper concludes that the obvious violation of the necessity requirement is the basis for evaluating the defendant’s action as not defensive but offensive.