형법 제22조 긴급피난의 성립요건에 관한 연구

Article 22 Section 1 of the Korean Criminal Code prescribes that two requirements are needed for the establishment of necessity. First, the actor’s infringement of rights should be evaluated as ‘an act to avoid’ impending danger, that is, an act of necessity; and second, the act of necessity should be granted as not exceeding the level of infringement, having ‘reasonable grounds’. The judgment of the former is called a requirement for the act of necessity, whilst the latter is usually called a requirement of reasonableness. When an act of a defendant who is confronted with impending danger lacks the requirement of reasonableness, this becomes at least necessity of excess, but if it lacks the requirement for the act of necessity, it is merely a harmful act that does not even lead to necessity of excess. An act of necessity with reasonableness is necessity and an act of necessity that lacks reasonableness is necessity of excess. Both necessity and the necessity of excess are established on the basis that the act of the defendant is included in the ‘act of necessity’, in other words ‘the act to avoid’. If an act is not an act of necessity from the beginning, the premise to consider reasonable grounds disappears and it can become neither necessity nor necessity of excess. According to Article 22 Section 2, necessity of excess is granted with the benefit of reduction or exemption of a sentence according to the judge's discretionary judgment. However, any act that does not fulfill the requirements of act of necessity cannot even be necessity of excess, thus cannot be granted the benefits of reduction or exemption of a sentence. The judgment regarding whether an act comes under the category of the act of necessity is an important gateway in deciding whether or not to grant the defendant an effect of reduction or exemption of a sentence. According to the ruling of the judicial precedents, the following four requirements must be established for the reasonable grounds of Article 22. First, the act of necessity of the defendant must be the only means to protect the rights confronted with impending danger. Second, when exercising necessity, the actor must choose the means that give the lightest damage to the victim. Third, the benefits preserved by act of necessity must be superior to the gains infringed by that. Fourth, the act of necessity must be an appropriate means in terms of social ethics or the spirit of the whole law and order. It is the established ruling of precedents that only if these four are established is the requirement of reasonableness of necessity fulfilled and necessity establishes. However, such ruling of the precedents must be supplemented in one aspect. So far, the precedents have not instructed regarding the requirement of act of necessity rather than reasonable grounds. There is no precedent on how the act can be included in the act of necessity and thus whether it is appropriate to grant at least the effect of reduction or exemption of a sentence. Considering the ruling of the precedents, there is no consideration of areas that need conviction without reduction or exemption of sentence as it is not even included in the act of necessity. To this, of the four requirements, this research proposes locating the content of only means and social ethics to the area of act of necessity. It is misleading to assess as ‘act to avoid’ impending danger only for the reason that it was an act due to impending danger even if the infringement of the defendant is not the only means or even if it contradicts severely social ethics. Suppose that the actor can avoid a danger by simply avoiding the place. If the actor protects one’s rights by intentionally attacking someone, is this ‘act to avoid’ impending danger? Is it appropriate to call infringement of rights that is not the only means an act of necessity? Or if for example, a doctor forcefully collected blood from a healthy person to find rare blood for an emergency surgery, can the doctor assert that one’s act can be considered as necessity or at least necessity of excess? Although apparently inevitable, is it justifiable to provide legal basis regarding discretionary reduction or exemption of sentence concerning acts that contradict social ethics? Such acts are acts to attack the victim and must not be seen as acts to avoid impending danger. The assertion of this research is that such acts cannot be considered as necessity or even necessity of excess as it lacks requirement of act of necessity.