위법성조각사유로서의 소극적 방어행위의 인정여부

Abstract

In the cases that an unjustified invasion and defence behaviour exist, the Supreme Court rules that cases were in self-defense in some cases and in passive defensive action as an act not running counter to social rule in some cases. However, the Supreme Court is ruling on the cases without a clear criteria of distinction on the self-defense and passive defensive action. Consequently, the conclusions of the Supreme Court's decisions on self-defense and passive defensive action as an act not running counter to social rule are inconsistent. To maintain a consistent position of the Supreme Court, the Supreme Court's current decisions on self-defense and passive defensive action should be reconsidered. If the relationship between self-defense and an act not running counter to social rule is taken into account, the cases that an unjustified invasion and defence behaviour exist should be judged by priority whether the cases were in self-defense. In conclusion, as long as self-defense including the concept of passive defensive action exists in criminal law, the concept of passive defensive action as an act not running counter to social rule is not necessary.