형법 제23조 자구행위의 재검토

Abstract

This paper targets self-help actions under criminal law. Self-help under the Korean criminal law is a legal system that is difficult to find in other countries. Despite such ingenuity, however, Korea's Supreme Court has never recognized the right to self-help. Theoretical research results are not as much as other reasons for kriminal justification. The reason seems to be none other than that the self-help act is aimed at civil rights. In contrast, other reasons for the justification of the law are intended to protect the important legal interests of criminal law. Self-help can be compared to self-defense because it is an act of temporary preservation of judicial claims, but it is not an act of post-emergency or a hierarchy of subordination to self-defense. Nor can it be replaced by the type of emergency action that governs the negation-to-justice relationship. As a relative right, claims are recognized between certain persons, so self-help actions to preserve other people's claims cannot be recognized due to their nature. In Korea, however, the right to self-help should not be stipulated in the criminal law, but in the civil law like Germany. The interpretation of self-help actions that have developed in the criminal law area will be useful even if the law defines self-rescue actions anew. What should be contemplated when newly incorporating the right to self-help into the civil law is to specify the methods of self-help in the law, like those under the German Civil Law. This is a request based on the clarity principle, which is one of the contents of criminal justice, and because the requirements and scope of self-help rights in the judicial domain that governs the individual legal relations between persons directly affect the interests of the victims. Of course, the type of self-help action that should be legalized at this time does not necessarily have to be the same as that of Germany, but it is a matter for Korean legislators to decide.