A. As to the injury caused by assault among the facts charged in the case 1525 case, the Defendant’s act constitutes a legitimate defense, inasmuch as the victim W first exercised the force by leading the Defendant’s arms, leading the Defendant’s arms, etc., and the Defendant committed an assault against the victim, thereby constituting a legitimate defense.

Nevertheless, the judgment of the court below convicting this part of the facts charged is erroneous by misapprehending the legal principles.

B. The sentence of the lower court’s improper sentencing (2 million won) is too unreasonable.

2. Determination

A. As to the assertion of misunderstanding of the facts or misapprehension of the legal doctrine, the Defendant asserted the same purport as the grounds for appeal in the lower court’s judgment, and the lower court rejected the Defendant’s assertion on the ground that “The Defendant’s act constitutes an active attack exercising a new tangible power beyond a passive resistance to protect his body by taking account of all the circumstances such as the circumstances acknowledged by the evidence duly adopted and examined by the lower court, and the method and degree of exercising violence.”

2) In order to establish a legitimate defense under Article 21 of the Criminal Act, the act of defense must be socially reasonable, taking into account all specific circumstances, such as the type, degree, method, and level of infringement of the legal interest infringed by the act of infringement, as well as the kind and degree of legal interest to be infringed by the act of defense (see Supreme Court Decisions 92Do2540, Dec. 22, 1992; 2003Do4934, Jun. 25, 2004). Where it is reasonable to deem that the act of the perpetrator was committed first with his intent to attack the victim’s unfair attack rather than with the aim to defend the victim’s unfair attack, and it was set up against it, such an act of attack is both a defensive act and an act of attack at the same time.