살인이 정당방위가 될 수 있는가 - 수사기관이 인정한 정당방위 사례에 대한 실증적 분석을 중심으로 -

There are some misconceptions among the Korean public regarding the practice of self-defense in the country. According to the public’s perception of the law as reported by the media, self-defense is rarely recognized in South Korea’s judicial system. Additionally, there is a common consensus among expert researchers that self-defense is seldom recognized. However, this perception focuses only on court rulings and overlooks the fact that there are a significant number of cases where self-defense is recognized during the investigative phase. Criticism regarding the self-defense practice tends to be highlighted mainly through media reports on serious crimes. Sensational news articles report that self-defense was not recognized in cases where the victim was killed or seriously injured. In particular, rulings that deny self-defense in cases of quantitative excessive defense, i.e., where an opponent has been rendered incapacitated by an initial counterattack, and an additional lethal counterattack is used to fatally wound the opponent, have been the subject of intense criticism. However, there are a significant number of cases where self-defense has been recognized as the defender responded with a lethal counterattack in the face of a realistic threat from a person armed with a weapon. This study reveals that Korean investigative practices in the past often boldly recognized self-defense in cases involving fatal stabbings and concluded them with non-prosecution. This contradicts the current general perception of self-defense. Analyzing the cases where investigative agencies have recognized self-defense from the enactment of the Criminal Act to the present, the following trends have been observed. Firstly, investigative agencies tended to file charges of manslaughter rather than murder in cases of fatal incidents where there was a potential to consider the suspect’s actions as self-defense. This trend now seems to have disappeared, and it is considered a theoretically desirable change in criminal practice. Secondly, self-defense has been recognized in cases where a person defended themselves with a weapon against an armed attacker and caused the attacker’s death, and there have been no instances where the failure of the defender to retreat from the scene was viewed unfavorably in assessing self-defense. This trend aligns with the stand-your-ground law in the United States. Thirdly, in all cases where the defender preemptively used a deadly weapon against someone breaking into their residence at night, resulting in the intruder’s death, the defender was found to have acted in excessive self-defense, and special exemptions from punishment were applied. These investigative precedents are reminiscent of the castle doctrine in U.S. law. Fourthly, in every case where a woman stabbed her rapist to death or seriously injured him, she was found to have acted in self-defense and was not prosecuted. Even if the woman was armed and the rapist was barehanded, it was boldly acknowledged by the investigative practice that the woman was still at a power disadvantage and that stabbing the rapist with a weapon was a minimum necessary counterattack. This is analyzed as an investigative decision reflecting the principle of substantive arms parity.