[1] The requirements for the exclusion of illegality in exercising one of the parties who had external speculation

[2] The case holding that the illegality is excluded on the grounds that one of the parties who had externally abused, was not a means of resistance to protect himself/herself against the unilateral illegal assault of the other party and to escape it, and the other party did not deviate from the limit of passive defense

[1] In general, since the attack and defense between the persons engaging in each other are continuously crossing and defendive acts are simultaneously in nature of both areas where the attack and defense are conducted at the same time, it is difficult to regard either party's act as a legitimate act for defense or as a legitimate self-defense. However, even if one party's act appears to be in appearance, if one party unilaterally commits an attack and the other party uses tangible power as a means of resistance to protect himself/herself from such unlawful attack and to escape therefrom, it shall be deemed that the illegality should be avoided as a reasonable act acceptable by social norms in light of all the circumstances, such as the situation and purpose of the attack, and the intent of the actor, unless the act does not go beyond the limit of passive defense.

[2] The case holding that the illegality is excluded on the grounds that one of the parties who had externally abused, was not a means of resistance to protect himself/herself against the unilateral illegal assault of the other party and to escape it, and the other party did not deviate from the limit of passive defense

[1] Articles 20 and 21 of the Criminal Act / [2] Articles 20 and 21 of the Criminal Act

[1] Supreme Court Decision 82Do2098 decided Feb. 8, 1983 (Gong1983, 535) Supreme Court Decision 84Do1440 decided Sep. 11, 1984 (Gong1984, 1681) Supreme Court Decision 84Do2929 decided Mar. 12, 1985 (Gong1985, 584) decided Oct. 22, 1985 (Gong1985, 1585)

Defendant

Prosecutor

Busan District Court Decision 99No793 delivered on July 8, 1999

The appeal is dismissed.

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, the court below found the defendant on May 19, 198 with the non-indicted 2 (years 54, n, and n) who was the husband of the non-indicted 2 (years 59) and found the defendant on the outer solitary house where the defendant (years 66, n, and n) did so, and the defendant spreads the vain vaum where the non-indicted 1 was n't booming and pushed down the defendant's flab, and used the defendant's flab and face to flad on the plaintiff's face, and used the defendant's flabing and flabing the defendant's flab, and used the defendant's flabing and flabing the defendant's face, and there was no other way to avoid any harm to the non-indicted 1 and 2 to defend this, and there was no violation of the rules of evidence finding that there was no other unlawful act in violation of law.

2. In general, since the attack and defense between the persons engaging in attack and defense are continuously cross-sectioned, and the act of attack and defense is at the same time, it is difficult to regard either party's act as a legitimate act for defense or as a legitimate self-defense in appearance only when one party's act is committed. However, in case where one party unilaterally commits an attack and the other party uses tangible power as a means of resistance to protect himself from such unlawful attack and escape therefrom, unless it goes beyond the limit of passive defense, it shall be deemed that the illegality is denied as an act which is reasonable in view of social norms in light of all the circumstances, such as the process and purpose of the attack and the intent of the actor, unless it goes beyond the limit of passive defense (see Supreme Court Decision 84Do1440, Sept. 11, 1984).

According to the above facts duly admitted by the court below, as a male and female of the non-indicted 1 and 2, who is a woman of the age of 66, who is the husband and female of the non-indicted 1 and 2, were found in a remote place where the defendant made the married couple's permission, and unilaterally committed illegal violence beyond the defendant, the above acts committed by the defendant do not go beyond the limit of passive defense as a means of resistance to protect himself and escape from it. In light of all the circumstances such as the defendant's above acts and their purpose and intent as mentioned in the records, it shall be deemed that the above acts by the defendant are reasonable in light of social norms, and the illegality shall be denied.

Therefore, it is proper that the court below found the defendant not guilty on the ground that the defendant's act is dismissed, and there is no error of law by misunderstanding legal principles as pointed out in the Grounds for Appeal.

The grounds of appeal are without merit.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-soo (Presiding Justice)