위법성조각사유의 전제사실에 관한 착오

In the case at hand, the defendant intentionally inflicted bodily harm on the victim, A, and their act does not constitute legitimate self-defense. This is because there was no actual imminent threat from A involving a dangerous instrument against the defendant, and therefore, the defendant could not exercise legitimate self-defense against A. However, the defendant mistakenly believed that they met the requirements for the objective preconditions of legitimate self-defense when they inflicted harm on A. This mistake pertains to a Mistake of Justificatory Facts, and many scholars believe that the current criminal law lacks specific solutions to address such errors. Additionally, some scholars argue that a Mistake of Justificatory Facts is distinct from a mistake of law. This theory follows the arguments made by some academics in Germany. This theory is designed to address the issue of Mistake of Justificatory Facts in a manner consistent with common moral sentiments, and while various scholarly opinions exist, there is no lack of debate regarding its validity. Regarding the issue of Mistake of Justificatory Facts, it is not that there are no solutions under current law. The perpetrator mistakenly believed that the objective preconditions for legitimate self-defense existed, and to be free from punishment, such a perpetrator must have a 'justifiable reason' as stipulated in Article 16 of the Criminal Code. However, Article 16 does not specify detailed criteria for judgment. In relation to this issue, it appears that the 'social norms' provision in Article 20 of the Criminal Code can serve as a criterion for evaluating the 'justifiable reason' in Article 16. The 'social norms' provision states that acts not violating social norms are those accepted in terms of social conventions or social ethics, thus functioning as a substitute for the 'justifiable reason' in Article 16. Therefore, if all errors of law by the perpetrator are acceptable to the extent that they conform to social norms, then illegality can be excluded. In the case at hand, the Supreme Court finds the defendant's Mistake of Justificatory Facts under Article 16, 'when there is a justifiable reason,' and judges the basis under Article 20 of the Criminal Code, social norms. As a result, the defendant's act is deemed not illegal, and they are acquitted. The attitude of the case law seems appropriate.