가정폭력 피해자의 정당방위 성립에 관한 한·중 형법 비교연구

This study conducts a comparative analysis of the legislative structures and judicial applications of the criminal laws of Korea and China, in order to examine whether the retaliatory acts of victims of domestic violence can be regarded as legitimate self-defense.Self-defense refers to an unavoidable and reasonable defensive act performed by an individual to protect his or another’s legal interests against an ongoing unlawful infringement. It is recognized as a typical ground for justification under criminal law. However, in cases of domestic violence, the victim's defensive actions occur within the structure of ongoing, repetitive abuse and a dominant relationship. It is difficult to completely justify the legitimacy of the defensive behavior solely within the present-time and proportionality frames of past self-defense. Article 21 of the Korean Criminal Code makes defense against present wrongful acts a ground for criminalization while Article 20 of the Chinese Criminal Code does not uphold criminal liability only for acts of defense in response to ongoing wrongful acts. This difference is due to Korea being influenced by Japanese and German criminal law theory, which takes a comprehensive view of the actor's objective awareness and elements of a normative assessment, while China, based on the tradition of the Soviet legal system, has shaped its legal assessment based primarily on the objective requirements. Both countries, though, share a limitation: they strictly construe the presentness and degree-of-defense intent test for situations involving systemic, ongoing violations like domestic abuse. This makes it difficult to assess the victims' defensive actions as self-defense. In China's case, the strict temporal application of self-defense requirements means that even defensive counter-attacks by the victim after a long period of abuse are often deemed intentional crimes. Korea also shows a limitation in that it fails to fully take into account the ongoing fear and inescapability of the victim under the standard of socially acceptable behavior. Therefore, this study raised the need to more flexibly interpret the time requirement for self-defense, and substantially redefine the standard for judging the substantiality and limitations of defense actions, to reflect the specificity of cases involving cases of family violence. Furthermore, it suggested directions for interpretive and legal improvements to ensure the self-defense system can effectively fulfill its function of human rights defense by actively reflecting the psychological state of the victims and the ongoing threat situations in the process of self-defense evaluation.