법문화와 정당방위 - 판례의 정당방위 해석론에 대한 비판적 접근 -

Korean Criminal Act provides for self-defense in Article 21. According to Paragraph 1 of Article 21 of Korean Criminal Act, “an act which is performed in order to prevent impending and unjust infringement of one’s own or another person’s legal interest shall not be punishable if there are reasonable grounds for that act.” Such self-defense is recognized as a ground for justification. However, the judicial precedents of Korean Supreme Court do not recognize the self-defense well. As for the attitude of these judgments, various criticisms were raised in the criminal law theories. So why do not the judicial precedents recognize the self-defense well? This article starts with this question. This article argues that the attitude of these judgments relates to our traditional legal culture. With criticizing the passive attitude of the judicial precedents to self-defense, this article argues that today, self-defense should be actively recognized. To validate this, this article examines the interrelationship of criminal law and culture. Criminal law and culture are connected. In order to establish this basis, this article uses the research of Professor Paul K. Ryu. According to this, criminal law and culture are linked through legislation and interpretation. These claims can also be applied to self-defense. Culture influences the application of self-defense through legislation and interpretation. Culture is here embodied in legal culture. The legal culture referred to here means our traditional legal culture. Our traditional legal culture has a collective and communal character. Therefore, it is passive in recognizing self-defense. Instead, the traditional legal culture prefers the justifiable act prescribed by Article 20 of the Criminal Act. This article argues, however, that as the traditional legal culture fades and the legal culture that emphasizes rights is newly established, the legal culture that is passive in self-defense should also be changed.