폭행
The prosecutor's appeal is dismissed.
1. The summary of the grounds for appeal (legal scenario) is that the Defendant and D exercised the tangible power in the same way as each other; whether the Defendant committed an attack against D before the Defendant setting up against the Defendant even according to the Defendant’s statement; it is unclear how much continued; and even according to the Defendant’s statement, it is reasonable to view that even if the Defendant’s act was based on the Defendant’s statement, the Defendant took head debt from D and did not constitute self-defense. Therefore, the Defendant’s act cannot be deemed as going beyond the defensive act.
Nevertheless, the lower court erred by misapprehending the legal doctrine on self-defense, thereby adversely affecting the conclusion of the judgment.
2. It is common that it is difficult to view the act of attack and defense to constitute “political act” or “self-defense” or “self-defense” by either party’s mere commission of an act of attack and defense at the same time, as the act of attack and defense occurred between persons who conduct a fighting.
However, in a case where one party unilaterally commits an illegal attack and the other party uses tangible force as a means of resistance to protect himself/herself from such attack and escape from this attack, unless it is evaluated as a new affirmative attack, it is reasonable that such act is permissible under the social concept (see, e.g., Supreme Court Decision 2009Do12958, Feb. 11, 2010). In light of the foregoing legal doctrine, the following circumstances acknowledged by the evidence duly adopted and investigated by the court below, namely, ① the Defendant, along with D and D’s mother, was placed in the elevator located in the department store as stated in the facts charged, with D and E, and the Defendant was merely removed from D and E, which he/she had been on board.