The defendant's appeal is dismissed.

1. The summary of the grounds of appeal (misunderstanding of the facts) is as follows: (a) the Defendant only strokes the victim to defend the victim by strokeing the victim at the time of fighting; and (b) the Defendant’s above act is justified as a legitimate defense, and thus, the illegality of the crime of assault is excluded.

Nevertheless, the judgment of the court below which found the defendant guilty of the crime of assault is erroneous by misunderstanding the facts and affecting the conclusion of the judgment.

2. Determination

A. In the case of fighting, the act of fighting at the same time is one of the defensive acts, and thus cannot be deemed as a legitimate defense or excessive defense (see, e.g., Supreme Court Decisions 71Do527, Apr. 30, 1971; 92Do1329, Aug. 24, 1993; 200Do228, Mar. 28, 2000). (b) The following circumstances acknowledged by the evidence duly adopted and investigated by the court below are as follows: (1) the defendant and the victim, who is a call bareboat engineer, have the nature of attack against many unspecified people, and there was a fighting accident first by the defendant; (2) the defendant's act of fighting at the same time is more likely to cause harm to the defendant's age than the victim, and the defendant's act of fighting at the same time is more likely to cause harm to the defendant's victim or defense than the defendant's act of fighting at the same time.