형법상 자구행위에 관한 고찰

Under Article 23 of Korean Criminal Law, “when it is impossible to preserve a claim by legal procedure, the action taken in order to avoid the impossibility or significant difficulties of its execution shall not be punishable when there are reasonable grounds.” Article 23 of Korean Criminal Law allows self-help to preserve claims as an exception to the principle of the preservation of individual rights via resort to legal writ. In the event that a person finds it significantly difficult to preserve their right to a claim through court proceedings, a considerable act of self-rescue may be acceptable to avoid the impractical or significant difficulty of ultimately securing that claim. Individuals sometimes resort to self-help when they retrieve property found under the unauthorized control of another person. The legal systems places varying degrees of limitation on self-help, and laws among the national jurisdictions vary widely. Self-help was only theoretically recognized in Germany and Japan at the time of the enactment of Korean Criminal Law, but the self-help clause was still enacted therein. Given that there are few foreign legislative cases that define self-help as a justification in criminal laws, the self-help clause in Korean Criminal Law is a unique legislative case. There are various controversies regarding the nature of self-help, the interpretation of the self-help clause, and whether related claims for compensation should be restricted to property claims. In this paper, the author reviews the problems of interpretation related to the self-help clause under Korean Criminal Law and the legislative policy for the revision of the self-help clause based on its legislative history in comparison with the self-help clause in Korean Civil Law.