The prosecutor's appeal is dismissed.

1. According to the evidence submitted by the prosecutor of the gist of the grounds of appeal, the Defendant’s assault against the victim at the same time constitutes a defensive act, and thus does not constitute self-defense or legitimate act.

Nevertheless, the lower court erred by misapprehending the facts or by misapprehending the legal principles, thereby adversely affecting the conclusion of the judgment.

2. Determination

A. It is common that it is difficult to view the act of attack and defense as "political act" or "self-defense" or "self-defense" by putting only one of the acts of the parties in the nature of both sides, which are the act of attack and defense, even if the act of attack and defense were conducted simultaneously between the two parties.

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 therefrom, even if the act is not deemed a new affirmative attack, it is reasonable to view it as reasonable in light of the social concept, unless it is deemed that the act is a new affirmative attack (see, e.g., Supreme Court Decision 2009Do12958, Feb. 11, 2010).

In light of the above legal principles, the following circumstances acknowledged by the evidence duly adopted and examined by the court below, namely, ① the Defendant, while eating at the victim and the restaurant at the time of the instant case, was out of the restaurant to suspect the male relationship of the Defendant, to avoid the defect of the bath, ② the victim was unable to get out of the restaurant and the Defendant, thereby harming the Defendant by putting the head debt of the Defendant on his hand, and the Defendant was assaulting the Defendant first, such as walking the body part of the Defendant more than the floor, and ③.