In accordance with the adopted evidence, the court below rejected the defendant's assertion on the ground that the defendant committed an assault against the victim non-indicted 2 (age 2) approaching his/her his/her his/her his/her his/her his/her father at the ○○○○ Martic 25, 2010, on or around September 14:30, 2010, on the ground that the defendant's act did not constitute a violation of social norms, even if it is difficult to deem that there was an infringement, and even if such infringement occurred, the court below found the defendant guilty of the charges of assaulting this part against the defendant.

However, it is difficult to accept such judgment of the court below for the following reasons.

An act that does not violate the social norms stipulated in Article 20 of the Criminal Act refers to an act that can be accepted in light of the overall spirit of legal order, or the social ethics or social norms of its hinterland. Thus, if a certain act is deemed to be an act of defensive and passive defense that can take place in the current situation of social ethics or social norms due to its motive or purpose being justified and reasonable means and method, and infringement of legal interests and benefits are balanced, it shall be deemed to be an act that does not violate the social rules.

원심판결의 이유와 기록에 의하면, 당시 피고인은 실내 어린이 놀이터 벽에 기대어 앉아 자신의 딸(4세)이 노는 모습을 보고 있었는데, 피해자가 다가와 딸이 가지고 놀고 있는 블록을 발로 차고 손으로 집어 들면서 쌓아놓은 블록을 무너뜨리고, 이에 딸이 울자 피고인이 피해자에게 ‘하지 마, 그러면 안 되는 거야’라고 말하면서 몇 차례 피해자를 제지한 사실, 그러자 피해자는 피고인의 딸을 한참 쳐다보고 있다가 갑자기 딸의 눈 쪽을 향해 오른손을 뻗었고 이를 본 피고인이 왼손을 내밀어 피해자의 행동을 제지하였는데, 이로 인해 피해자가 바닥에 넘어져 엉덩방아를 찧은 사실, 그 어린이 놀이터는 실내에 설치되어 있는 것으로서, 바닥에는 충격방지용 고무매트가 깔려 있었던 사실, 한편 피고인의 딸은 그 전에도 또래 아이들과 놀다가 다쳐서 당시에는 얼굴에 손톱 자국의 흉터가 몇 군데 남아 있는 상태였던 사실 등을 알 수 있다.

Examining the circumstances, such as the motive, means, and degree of damage of the defendant, which can be known from such factual basis, in light of the legal principles as seen earlier, the defendant's act is aimed at protecting the victim's wife's children by playing in the victim's behavior so as not to be in the face again, and can be evaluated as an active and passive defense to prevent the victim's sudden attack against his/her wife, and therefore, it is difficult to view it as an act in violation of social norms.

Nevertheless, solely based on the circumstances indicated in its reasoning, the lower court determined that the Defendant’s act violated social norms and constitutes a crime of assault. In so doing, the lower court erred by misapprehending the legal doctrine on acts that do not violate social rules, thereby adversely affecting the conclusion of the judgment. The Defendant’s ground of appeal pointing this out has justifiable grounds.

Therefore, the guilty part of the judgment of the court below should be reversed, and the part of the judgment of the court below which acquitted the defendant is premised on the establishment of the crime of assault, which is the guilty part, and it is in the relation with the above reversed part and the

Therefore, without further proceeding to decide on the grounds of appeal by the military prosecutor, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices

Justices Kim Shin (Presiding Justice)