행위자가 인식한 정당화상황이 실재하지 않는 경우의 형법적 취급

Abstract

The Supreme Court takes a position that the actor’s act should be justified when the actor misidentified that the justification situation existed and there was a reasonable reason for the misidentification, even if there was really no justification situation. According to the general principle of justification, the act can not be justified, if there was no justification situation and only a subjective justification element. This is usually understood as the mistake of the justification situation. Therefore, the position of the Supreme Court is that the case of being a reasonable reason is not yet the mistake of the justification situation. The Supreme Court does the ex ante judgment on whether the justification situation exists or not. And the interpretation that the requirements of the arrest or the detention should be judged by the ex ante standard can be drawn from the provisions on the arrest and the detention in the Criminal Procedure Act. These arguments can support the position of the Supreme Court. According to the viewpoint of the Supreme Court, if the justification situation recognized by the actor did not exist and there was a reasonable reason for the actor's misidentification, the act is justified, and if there was not such a reasonable reason, then for the first time a mistake of the justification situation becomes a problem. However, the attitude of the Supreme Court does not consider the differences between the provisions of the Criminal Act and those of the Criminal Procedure Act, and recognizing the effect of the justification is not in accord with the general principle of justification even though there is no justification situation. It is appropriate to handle the case of the misidentification with a reasonable reason in the responsibility area. Therefore, I think that the change of the Supreme Court’s position should be sought.