형법 제21조 “방위하기 위한 행위”의 판단에 관한 연구

Abstract

The law of self-defense requires the existence of the actor’s intention of defense. An act lacking the intention of defense cannot fall under the definition of “act of self-defense” in Article 21 of the Criminal Code. Truly, self-defense becomes a problematic issue when the actor launches a counterattack against an invader’s preemptive strike. Hence, it is hardly thinkable in the ideal sense for the intention of defense to not exist at all in the area of self-defense. Self-defense is an act to defend one’s own legal interest as well as to attack the invader. It is true to say that the intention of offense and that of defense coexist to some extent in self-defense. However, the court denies the actor’s intention of defense when it recognizes that the actor’s intention of offense is extremely revealed. This is an interpretation method that acknowledges the extinction of the intention of defense on the grounds of extreme intention of offense. This article attempts to classify this type of offense into two types by empirically analyzing the cases. The first type is when the defendant quarrels with the victim. The second type is when the defendant launches an excessively aggressive counterattack compared to the invader’s attack. Since these two types are not acts of self-defense, the court concludes that the defendant’s act is neither self-defense nor excessive defense.