정당방위 요건 중 ‘침해의 현재성’에 대한 소고 - 대법원 2023. 4. 27. 선고 2020도6874 판결을 중심으로 -

Abstract

As a requirement for self-defense, there is ‘the presentness of infringement’. The discussion of ‘start’ and ‘end’ is important for ‘the presentness of infringement’. The Supreme Court did not make a meaningful statement on what the “presentness of infringement” was. Then, in the recent target judgment(Supreme Court 2020do6874 judgment sentenced on April 27, 2023), a meaningful statement was explicitly acknowledged that “the present nature of the infringement is recognized if there is an objective reason for the infringement to occur immediately.” Presumably, in situations where the perpetrator’s offense is taking place, or just before and immediately after the offense is committed, the “present nature of the infringement” must be recognized to prevent unfair damage to the victim. Although there is room for criticism that the above concepts of ‘just before’ and ‘immediately after’ are ambiguous, I think it is a specific expression rather than other expressions. From this point of view, I support the establishment of the target judgment. On the other hand, even in the case of “inveterate state of harm” where continuous violence is frequently committed, it is difficult to recognize by easing the “presentness of infringement.” This is because if self-defense is abused, there may be major confusion in legal order. However, as the target judgment says, even if the offense is temporarily suspended, if further infringement occurs immediately, the “presentness of infringement” should be recognized. This can also expand the case of self-defense recognition in the ‘inveterate state of harm’. In addition, revising the regulations related to self-defense should be done in an appropriate way after a sufficient review and collection of opinions.