위법성조각사유 전제사실에 관한 착오 문제의 올바른 범위-대법원 2023. 11. 2. 선고 2023도10768 판결에 대한 분석을 중심으로-

The subject of this article's analysis is a judgment concerning an incident in which the defendant, a boxing club trainer, misinterpreted the object (a recording device) in the victim's hand as a weapon during a conflict between members and caused bodily harm by forcibly opening the victim's hand. The issue here is whether the defendant's action constitutes a mistake regarding the legal basis for the offense and whether there was a "justifiable reason" for this mistake. The lower court acknowledged an error regarding the requirements for self-defense, but convicted the defendant due to a lack of "justifiable reason." The Supreme Court overturned this judgment, citing the legal concept of a justifiable act under Section 20 of the Criminal Code. The question of why the Supreme Court applies the legal concept of Section 20 in a situation involving self-defense is difficult to understand. The question arises whether the Supreme Court may have considered the case to be an error regarding the requirements of social adequacy under Section 20, even though such an error cannot occur. Applying this legal concept even opens up the possibility of considering the case as a so-called "double error" (error of prohibition), which, however, is incorrect. The Supreme Court has in the past recognized justification in cases involving an error regarding the legal basis. While this position has often been criticized in legal scholarship, it is not entirely without theoretical foundation. The background to this position lies in the requirement that the question of whether a present unlawful attack within the meaning of Section 21 of the Criminal Code exists should be assessed objectively ex ante, rather than objectively ex post. Such a discussion is more prevalent in German than in Korean literature, which is why it was consulted. This article also agrees with the view that the assessment of a present unlawful attack should be objectively ex ante. Ultimately, the question of whether there is a mistake about a current unlawful attack depends on the area of ​​responsibility to which this mistake can be attributed. Of course, this can be assessed differently depending on the circumstances. If such a mistake can be attributed to the victim's area of ​​responsibility, a current unlawful attack can be assumed. However, if the mistake lies within the perpetrator's area of ​​responsibility or cannot be attributed to anyone, it is a genuine error of permission. The first-instance judgment claims to be based on the (strict) theory of responsibility, but in fact, it takes the position of the majority opinion, which excludes intent and examines the question of negligence.