과잉방위의 법률효과 인정 요건인 ‘정황’의 불법 요건으로서 해석

It is reasonable to view the ‘circumstances‘ that serves as criteria for recognizing excessive defense as a requirement for crime establishment, not a condition for sentencing. Excessive defense is an act against an unjust intruder, so it is not only less likely to be criticized, but also has a subjective justification element. So, it is a situation where the illegality of the act is offset, but the illegality of the result is not completely offset because the defensive act exceeds the reasonableness. Thus, the legal nature of excessive defense can be understood as illegality and a fiction of responsibility. Then, it is logical to view the ‘circumstances’ set as the limit criteria for recognition of excessive defense as a requirement for crime establishment. Article 21, Paragraph 2 of the Criminal Act does not treat all unreasonable defensive acts as excessive defense that is recognized as having the effect of reducing or exempting the sentence, but only those that meet the requirement of “circumstances” are recognized as excessive defense. If the reasonableness of a defensive act is considered to mean both the reasonableness of means and the minimum balance of legal interests, then acts that meet neither criteron cannot be considered excessive defense. The reasonableness of a defensive act, which is the content of the reasonableness of means and the balance between legal interests, serves not only serve as a criterion for distinguishing self-defense from excessive defense, but also as a limit criterion for recognizing excessive defense. The circumstances that are the requirements for recognizing excessive defense can be examined in terms of the illegality of the act itself and the resulting illegality that constitutes the illegal act. Regarding the illegality of the act, the element of the circumstances is not the existence of the current unjust infringement itself, but the severity of the infringement. In terms of the illegality of the act, the motive of the crime can also be considered as a criterion of the circumstances, but since the concept of excessive defense itself contains the subjective justification element of self-defense, that is, the motive of the crime, the motive of the crime is not a factor in the judgment of the circumstances that are the requirements of excessive defense. Next, in terms of the illegality of the result, first, the balance of legal interests is an important factor in judging the degree of illegality of the result, and it becomes the content of the circumstances that are the requirements of recognition of excessive defense. Second, the manner of the defensive act also functions as the content of the circumstances that are the requirements of recognition of excessive defense. The factors considered as the content of the circumstances in this way only affect the recognition of excessive defense, and cannot be considered again in sentencing according to the principle of prohibition of double evaluation. The factors considered as sentencing factors in excessive defense are, first, the characteristics of the actor. Regardless of whether the circumstances required for recognizing excessive defense, the characteristics of the actor can be considered in sentencing. Second, the circumstances after the crime. Since the purpose of determining whether excessive defense is established when the reasonableness of the defensive act performed against the current unjust infringement is denied when determining whether it is justifiable defense at the time of the act, the factor of the circumstances after the crime cannot be used as a criterion for determining excessive defense.