beta
Text
The judgment of the court below is reversed.
Defendant shall be punished by a fine of KRW 1,000,000.
The above fine shall not be paid by the defendant.
Reasons
Summary of Grounds for Appeal
Since the Defendant was only engaged in misunderstanding of facts or misunderstanding of legal principles (in respect of injury) the victim C to escape from the situation where the Defendant was assaulted by three persons, G, victim C, etc., the Defendant’s act constitutes self-defense or legitimate act.
The sentence of unfair sentencing (one million won by fine) by the court below on the whole is too unreasonable.
Judgment
On the other hand, it is common that it is difficult to see that the act of attack and defense was a legitimate act for defense or self-defense by leaving only one of the acts of attack and the act of defense at the same time, because the acts of attack and defense were conducted in line with the relevant legal principles as to the assertion of mistake of facts or misapprehension of legal principles.
However, if one party unilaterally makes 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, the act, unless it is evaluated as a new active attack, is deemed to be reasonable in light of social norms, and thus, illegality is avoided (see, e.g., Supreme Court Decision 2009Do12958, Feb. 11, 2010). The following circumstances acknowledged by the evidence duly adopted and duly examined by the court below, namely, the victim and G with respect to the body of fighting that occurred on the street after the network stop (hereinafter “the body of this case”). During this process, the victim and G, “The body of this case,” “The body of the Defendant and G were gradually fighting with each other while making a mutual conflict with him/her, and during that process, the Defendant was able to make the victim fighting with his/her hand, and the victim was able to make the victim feel his/her fighting more specific and consistent with the purport to the effect that the credibility is recognized.”