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The defendant shall be innocent.
Reasons
1. Around 10:10 on December 13, 2012, the summary of the facts charged in the instant case: (a) the Defendant heard the horses of the Defendant in front of the packaging horse in Gwangjin-gu Seoul Special Metropolitan City; (b) he heard the horses of the Defendant; and (c) heard the horses that C shall start a packing horse business, but be removed from illegal facilities; and (d) took the face and body of the Defendant’s face from a bar or a drinking plant, and took the face of C by drinking flaps and raising it against it.
As a result, the Defendant, having teared the skin of C’s timber, caused the injury that could not be known to C with the treatment days.
2. Determination
A. In light of C and D’s respective legal statements, it is insufficient to recognize that the Defendant, only with the evidence submitted by the prosecutor, caused the tearing injury to C when having taken the face of C by drinking, and there is no other evidence to acknowledge otherwise.
B. According to C’s legal statement, in a situation where C was pushed up to the Defendant, and the Defendant was pushed up with C in order to avoid the attack, it can be recognized that the Defendant was faced with C’s face at one hand. Even if the Defendant appears to have fighting with one another, in fact one party unilaterally commits an illegal attack and the other party exercised tangible power as a means of resistance to protect himself/herself from such attack and escape from it, unless it is evaluated as a new attack, it is reasonable that such act may be permitted under social norms and its illegality may be avoided (see, e.g., Supreme Court Decision 2009Do12958, Feb. 11, 2010). Even if the Defendant and C’s body fighting, such act by the Defendant constituted a new type of attack as a means of resistance for the purpose of avoiding the attack, and thus, it cannot be deemed that it constitutes an active exercise of a new type of attack as a means of resistance for the purpose of attack, and thus, is reasonable in terms of social norms.
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