국민참여재판사건을 통해 본 정당방위 판단기준 분석

This article delves into the ways to overcome the traditional practice of court’s tendency not to admit self-defense by analyzing all the jury trial cases that have admitted self-defense. According to Article 21 of the Criminal Act, self-defense consists of two factors: ‘impending and unjust infringement’ which is the essential constituent and ‘reasonable grounds’ which is an added constituent. The former had been established by prohibiting personal revenge among individuals which was permitted customarily in ancient societies and as modern law made the conduct a legal right, while the latter was additionally formed in consideration of Korean legal culture and to secure its flexible applicability. Even though the reasonable grounds factor was set up as a neutral requisite, courts have construed it as a limiting element that led to the limited application of self-defense. The reasons lie in the influence of traditional Korean legal culture, German scholars’ design of it as a limiting legal principle with expansive use of self-defense, and preserving the principle of law and order on equal footing with self-protection as a basis of self-defense. To resolve the problem, the author reveals that the two recent court decisions that accepted the juries’ decisions show the change in people’s legal consciousness by focusing on the social psychological research which revealed that collectivist views tend to see other’s conducts and the causes as focused on external and circumstantial factors, while individualistic views tend to find other’s conducts and the causes as focused on internal and personal factors. The most recent decisions’ considering factors are internal and personal, which show the change of legal consciousness and its reflection to the court’s decisions by jury trial. However, this article criticizes the fact that the court customarily used the traditional standard “All the specific circumstances such as the types and degree of legal interests infringed by the infringing act, the method of infringement, the rate of the infringing act, the types and degree of legal interests by the preventive act should be considered.” on the ground that reasonableness requirement has been examined only by the circumstantial factor of infringement and excluded all the personal factors of the defendant that does not reflect the changed legal culture. The author suggests substituting the first and fourth requirement of the court’s traditional standard to passively exclude the extreme case of unbalanced legal interest, and the second and third standard to personal factors such as age, sex, occupation, health, nationality, family relations, soberness, the type and degree of intimate relationship and circumstantial factors such as time and place of the incident, the spot and repetitiveness of attack and defense, type and method and motive of using tools/deadly weapons/dangerous objects, the existence of dispute before the incident and the existence of accompanying persons. To realize the ideal policy of interpretation of self-defense clause, considering the essential element of self-defense is a circumstantial factor, the external factor of reasonableness should be considered as an internal meaning to the defendant which contributes to overcome the limited applicability of self-defense. Additionally the article seeks the way to appropriately expand the excessive self-defense clause by analyzing the courts’ decisions by pointing out the clause can be applied when the reasonableness requirement is not fulfilled. And since it is the excuse requirement, the situational stated clause should be interpreted as a meaning to the defendant’s internal factor.