Whether illegality is excluded in a case where a tangible power is exercised as a means of resistance to protect himself/herself from the illegal attack of the other party and escape therefrom (affirmative)

In a case where a tangible force is used as a means of resistance to protect himself from an illegal attack of the other party and escape therefrom, if the act does not go beyond the limit of passive defense, the illegality is dismissed as an act which has a reasonable nature that can be permitted by social norms in light of the overall circumstances such as the course and purpose of the act, the means and the intent of the actor, etc.

Article 20 of the Criminal Act

Supreme Court Decision 84Do1440 Delivered on September 11, 1984

Defendant

Prosecutor

Attorney Jeong-won

Seoul High Court Decision 84No2001 delivered on November 14, 1984

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the prosecutor's grounds of appeal.

1. According to the reasoning of the judgment below, as to the facts charged that the defendant died of an external cerebral cerebral cerebral cerebral cerebral cerebral cerebrala by leaving the victim's chest from the victim's chest by getting the victim's her acheal schea by getting the victim's her achea, etc. and getting the victim's her achea from the victim's her achea, the court below held that the defendant's act such as the above recognition of the defendant's act is reasonable in light of the circumstances leading to violence, the purpose of the defendant's act, the means and the intent of the actor's act, etc. in light of social norms, and thus, the illegality of the act is denied.

2. In a case where the other party uses tangible force as a means of resistance to protect himself from the illegal attack of the other party and escape therefrom, if the act does not go beyond the limit of passive defense, it shall be deemed that the illegality of an act which is reasonable and acceptable by social norms in light of the circumstances leading to the act, its purpose, means and the intent of the actor, etc., should be avoided (see Supreme Court Decision 84Do1440, Sept. 11, 1984).

However, according to the records, the defendant stated in the court of first instance that the victim was teared at one time in the victim's main electronic, etc., and when he tried to do so, the victim was faced with the victim. The police made a statement to the effect that the victim was faced with the victim when he was faced with the main electronic face, and that the victim was kn't kn't kn't kn't kn't kn't kn't kn't (62 kn't't't't't't't't'), but the prosecutor made a statement to the effect that the victim was fn't kn't kn't kn't kn't kn't kn't't kn't't't't 8th't't't't't't't't't gn't't't't't't't 10th't't't't'.

If the victim, like the defendant's statement at the court of first instance or in the police, tried to escape from the victim's face and attempt to escape from the victim's face, such act is an inevitable means of resistance to escape from the illegal attack, and there is room to deem that it is only a passive defensive act. However, if the drunk victim, such as the defendant's statement at the prosecutor's office, or the witness's statement at the court and in the investigative agency, such act is deemed an active anti-act for retaliation rather than an inevitable passive resistance to escape from the victim's attack.

The court below held that the defendant's act of anti-influence is nothing more than that of taking the victim's attack and taking the victim's passive resistance after the first consideration of the credibility of each of the statements that conflict with each other on the grounds of anti-influence, but the court below held that the defendant's act of anti-influence is nothing more than that of taking the victim's attack and taking the victim's attack as a means of passive resistance. Thus, the court below did not err in the misapprehension of the legal principles

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Il-young (Presiding Justice)