독일 환경보호시위의 형법적 고찰 - 특히 최근 문제된 환경 접착제 사건(Klimakleben)을 중심으로 -

Recently, environmental activist groups like "Last Generation" in Germany have sparked public controversy by staging protests that involve gluing themselves to roads, airports, and museums, or throwing food at artworks. In particular, the so-called “environmental gluing” protests, where activists attach themselves to roads and disrupt traffic, have not only provoked public resentment but also raised issues under criminal law. A notable case occurred in Berlin in 2022, where a traffic accident victim died after emergency vehicles were delayed due to such a protest. This study examines the relatively new phenomenon of environmental gluing protests from a criminal law perspective. First, environmental gluing acts may meet the elements of the offense of coercion under Section 240 of the German Criminal Code. German courts have considered sit-in protests involving adhesive as a form of violence. Blocking roads and thereby restricting the physical movement of vehicles is regarded not merely as psychological compulsion, but as actual “physical force.” Furthermore, if removing the protester’s body requires damaging the road surface or using solvents in a way that makes restoration difficult, the offense of property damage may be established. However, some lower court rulings have held that when a protester passively obstructs police removal by gluing part of their body, this does not necessarily amount to violent resistance under Section 113 of the German Criminal Code, which deals with resisting law enforcement officers. A more significant issue is whether such actions can be justified. First, the applicability of a state of necessity (Notstand) has been examined. The risks to life and physical integrity caused by the climate crisis are recognized as legally protected interests, based on Articles 2 and 20a of the German Constitutional Law. Furthermore, environmental protection itself may be considered within the scope of justification grounds. Moreover, although the climate crisis is a long-term phenomenon, the prevailing view holds that the requirement of immediacy can be met under certain conditions. While many argue that individual road-blocking actions fail to satisfy the criteria of suitability and necessity—on the grounds that they cannot have a tangible effect on preventing the climate crisis—there are also opinions that acknowledge indirect suitability, given the symbolic nature of the acts and their potential to raise political awareness. In order for a state of necessity to be recognized, the interest protected by the protest (such as the climate or human life) must outweigh the interest being infringed upon (such as freedom of movement). Although this is subject to debate, such a weighting can be considered justifiable. However, the prevailing opinion in Germany holds that circumventing the existing legal order in this way lacks proportionality. Next, in relation to civil disobedience, the actions of the "Last Generation" can be seen as symbolic, non-violent, and aimed at a public interest, which are typical characteristics of civil disobedience. However, the German Federal Constitutional Court and the majority of legal scholars maintain that civil disobedience inherently involves unlawfulness and cannot, by itself, serve as a ground for exemption from criminal liability. Furthermore, under German criminal law, the offense of coercion (§ 240 StGB) requires a reprehensibility review (Verwerflichkeitsprüfung) to determine the unlawfulness of the act. This means that even if the goal is legitimate, the conduct is deemed unlawful if the means used are socially inappropriate to a significant degree. However, there is still ongoing debate as to the extent to which long-term objectives—such as climate protection—can be taken into account in this assessment. On the other hand, assuming the unlawfulness of environmental gluing acts, a further issue arises as to whether individuals affected by such actions may themselves engage in lawful defensive conduct. Some legal opinions hold that if the protest exceeds the threshold of proportionality, then acts such as threats or even bodily harm committed during attempts to remove the protesters may be regarded as legitimate self-defense. The radicalization of environmental activism in Germany has given rise to various interpretations at the intersection of criminal and constitutional law. The legal recognition of necessity and civil disobedience requires strict conditions, and in particular, unless the criterion of proportionality is met, exemption from criminal liability remains difficult to achieve. In Korea as well, incidents similar to environmental gluing have occurred and been subject to judicial proceedings. While the rulings ultimately reached conclusions similar to those of German courts, they fell short in providing a detailed line of reasoning leading to those outcomes. In this respect, the German legal discourse offers valuable points of reference.