싸움에 있어서 정당방위의 확대

Abstract

In the West, ideas of Individualism and Liberalism were strong and the side of privacy in self-defense was highlighted. As a result, self-defense has been expanded and recognized boldly. However, because of excessive exercise in self-defense, certain social and ethical limitation on the recognition of self-defense has been popular today. In contrast to the west, we did not experience properly individual's fundamental rights as self-defense due to the traditional ethics. The reasonable ground was introduced from the social and ethical limitation raised by Germany and Japan and has been used as legal basis comprehensively to restrict self-defense. Furthermore, if self-defense be too easily recognized, there is concerns that the violence is likely increased on the pretext of self-defense. Only 14 cases were justified as self-defense by the Supreme Court almost 60 years so far after the Korean Criminal Law was enacted in 1953. This is because an act of passive resistance be recognized not as self-defense of article 21 but as Justifiable act of article 20 and the fight be not recognized as self-defense in principle. If eventually fewer accepted as self-defense, so is insufficient to protect the rights of the people. The background of these problems is because the judgment of the court for the reasonableness in self-defense was not being very specific and the theory in academia about the reasonableness has not been established properly. In this situation, it is difficult to obtain sympathy from the people, nor to provide them with specific criteria. To overcome these problems, the standard of judgment of the reasonableness should be specific and clearly. Particularly, the suitability of means(defensive actions should be appropriate to exclude the infringing) and the principle of relatively minimal infringement(defensive actions should give relatively minor damage) should be strictly enforced. It would be fine to recognize the social and ethical limitation as one of the judgment of the reasonableness. And the passive resistance determined as the justifiable act by past should be restored to self-defense. In the fight, an act of force to defend rather than attack first should be widely recognized as self-defense to the in extent consistent with the suitability of means and the principle of relatively minimal infringement.