오상자구행위를 오상방위로 잘못 판단한 판례에 대한 비평 - 채무불이행에 대한 정당방위의 이론적 검토를 겸하며 - - 헌법재판소 2010. 10. 28. 선고 2008헌마629 결정 -

Let’s imagine a situation in which a customer at a restaurant doesn’t pay the bill and runs away, evading the owner’s pursuit. The customer owes the owner money for food, but has defaulted, creating an unlawful breach of credit situation known as default. Furthermore, the unidentified customer is on the run, and if the owner loses him, he'll be unable to recover on his debt. In this case, if the owner chases the customer and grabs him with his hands, it is an act of self-help under Article 23 of the Criminal Code. In other words, the owner’s exercise of tangible force can be interpreted as “an act performed to prevent its execution from being impossible or significantly impracticable,” which fits the requirements of Article 23. It is error to characterize acts done to preserve a claim based on a bond as self-defense rather than self-help. Self-defense must be an act in defense of an ‘impending and unjust infringement,’ and it is clear that default does not meet this requirement. It is an uncontested conclusion in the academic literature that there is no self-defense against default. However, there is no specific discussion regarding whether default is not considered self-defense due to the absence of any of the requirements outlined in Article 21 of the Criminal Code. There should be a discussion as to whether the default is not an ‘infringement’ in the first place, or whether it constitutes an infringement but is not an ‘impending’ infringement, or whether it is not an ‘unjust’ infringement. Default is, of course, a civil offense, and while fulfillment of the debt is delayed, an unlawful infringement of legal interests continues. It is also a common interpretation among scholars that civil offense is included in the ‘unjust’ of Article 21 and qualifies as self-defense. Therefore, it is not unreasonable to conclude that default also constitutes a self-defense circumstance of “impending and unjust infringement” in the formal sense. To reject this interpretation, the self-defense requirements of ‘infringement,’ ‘impending,’ and ‘unjust’ must be interpreted purposively, without regard to their plain meaning. In Germany and Japan, the issue is not limited to defaults, but is broadly discussed in the context of self-defense against omission. The author has attempted to find a basis for rejecting self-defense against default within the framework of the interpretation of the Korean Criminal Code, referring to foreign jurisprudence. He also wrote this article to criticize the Constitutional Court’s ruling that interpreted defaults such as dine and dash as self-defense situations.