정당방위의 상당성 요건의 원류와 그 해석에 관한 일고찰

The Korean Criminal Act explicitly codifies the requirement of Reasonableness in the provision on Self-Defense. This requirement originally appeared as Necessity in the government’s initial draft of the Criminal Code, but was revised to Reasonableness by the Legislation and Judiciary Committee of the National Assembly before enactment. The right of Self-Defense, when framed solely in terms of Necessity, was so powerful a private right that it theoretically permitted even lethal force to protect minor property. In response, the legal concept of Reasonableness emerged as a means of narrowing the scope of Self-Defense, and this concept remains embedded in current law. The Reasonableness requirement in Self-Defense has emerged in various countries’ criminal codes, either through legislative reforms or interpretative theories. For instance, in Germany, a past draft amendment to the Criminal Code attempted to replace Necessity with an explicit Reasonableness requirement. In Japan, theoretical developments have resulted in an interpretation where the Unavoidability requirement is understood to encompass both Necessity and Reasonableness. While these systems all share the common feature of incorporating Reasonableness into the doctrine of Self-Defense, the concrete sub-elements that constitute this requirement differ significantly. Assuming that Reasonableness functions to limit the scope of the right to Self-Defense, its content can be divided into two distinct evaluative questions: first, whether the defender was obliged to avoid the attack rather than retaliate; and second, whether a less forceful defensive measure could have been taken. That is, the requirement of Reasonableness governs both the permissibility of engaging in defensive conduct and the allowable extent of such conduct. In German criminal jurisprudence, this restrictive function has been theorized under the concepts of Social Ethical Limitations, which have influenced interpretative approaches in Korean criminal law. By contrast, Japanese case law has long held that the means of defense must be of Requisite Minimality, subsuming this requirement within the framework of Reasonableness. In addition, Japanese criminal theory assumes cases where the defender should have refrained from taking any defensive measures at all, and conceptualizes this requirement under Necessity. The view that one ought to have avoided the attack rather than resist is, in essence, a denial of the Necessity of the defensive act. Thus, Japanese Self-Defense doctrine is understood as a combination of Necessity and Reasonableness. Nonetheless, these foreign theories are not directly applicable to the interpretation of Korean criminal law, nor can they be adopted wholesale. Under the Korean Criminal Act, the Reasonableness requirement must be based on the premise that the defensive act was Necessary, and it should primarily focus on whether the act remained within the bounds of Requisite Minimality. Accordingly, the Reasonableness requirement in the provision on justifiable defense should include Requisite Minimality as its core sub-element. Korean case law currently attempts to interpret Reasonableness using the vague and tautological concepts of Social Appropriateness or Social Mores. This approach fails to move beyond earlier jurisprudence that equated Reasonableness with Public Order and Morals, assessing it based on Expectability. However, the Reasonableness requirement in Self-Defense must be analyzed through more detailed sub-elements, and these elements must be categorized and clearly communicated to legal actors for practical guidance.