The prosecutor's appeal is dismissed.

1. Although the defendant's act does not constitute self-defense or legitimate act, the court below erred by misapprehending legal principles.

2. In a case where one party unilaterally commits an illegal attack and the other party uses a tangible power as a means of resistance to protect himself/herself from such attack and escape therefrom even if the act appears to be a new affirmative attack, it is reasonable to view that it is reasonable to allow under the concept of society, unless it is deemed as a new affirmative attack.

(대법원 2010. 2. 11. 선고 2009도12958 판결 참조). 그런데 원심이 적법하게 채택하여 조사한 증거들에 의하면, ①술에 취한 A이 택시를 운전 중인 피고인에게 먼저 욕설을 한 사실, ②이에 피고인이 항의하면서 택시에서 내리자 A은 피고인에게 달려들어 멱살을 잡고, 무릎으로 낭심 부위를 찼으며 손으로 얼굴을 때린 사실, ③피고인은 위와 같이 달려드는 A을 밀쳐내기 위하여 손으로 A의 목과 가슴을 수회 밀친 사실 등이 인정된다.

According to the above facts, it is reasonable to view that the defendant's act of smuggling and chest can be seen as a means of resistance to protect himself from the illegal attack A, and it is difficult to see it as a new active attack, and therefore, it is reasonable to see that there is a reasonable ground to permit it in light of social norms. Thus, the judgment of the court below that the defendant's act is not illegal is justified.

3. Therefore, the prosecutor's appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act, and it is so decided as per Disposition.