형법 제23조 자구행위 등 위법성조각사유의 존재이유

Abstract

The criminal law basically protects the legal interests including individual's life, body freedom and property, etc. We usually think that individual's life, body and freedom are more important than property. So the question of the criminal law supporting self-help is a trouble-solving broker's criminal law because self-help as the ex-post emergency action violates other people's life, body in order to protect one's property. In these days, a few countries have self-help as one of the justification in criminal law. However, the legislators stipulated the self-help of clause 23 in 1953 when they established the Korean Criminal Law. They intended to rule definitely on the legal principles that be received by the scholars' theories at that time. Self-help is an ex-post emergency action after the violation is completed while Self-defense is an ex-ante emergency action. The action of self-help is admitted if it is impossible to preserve a claim by legal procedure. The ex-ante emergency action including self-defense, necessity is admitted to protects every legal interest. Self-help as the ex-post emergency action is restrictively admitted to protect the recoverable right. It does not mean that admitting self-help is ignoring other's body, freedom. All of the self-dense, necessity and self-help are the admissions that a man escape the crisis by one's own power if the country is not able to help the person in an emergency. As a result, self-defense, necessity and self-help are the individual's emergency actions if the country could not help individual. These emergency actions do not mean disregard of legal process or the principle of constitutional state but individual's measure to escape crisis.