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(영문) 헌재 2000. 4. 27. 선고 2000헌마73 결정문 [기소유예처분취소]

In the case of violation of the Punishment of Violences, etc. Act, where there are many concerns about self-defense or legitimate acts, it is obvious that the police prepared only the interrogation protocol of the claimant and the victim contradictory to each other, and then closed the investigation and sent it as they are, and the prosecutor immediately suspended indictment without any additional investigation, such as the fact that it is obvious that the prosecutor infringed the right to equality and the right to pursue happiness, which is the basic right of the claimant.

[Reference Provisions]

Articles 10 and 11(1) of the Constitution of the Republic of Korea

Article 68 (1) of the Constitutional Court Act

Article 2 (2) of the Punishment of Violences, etc. Act

Articles 20, 21(1), and 260(1) of the Criminal Act

【Reference Cases】

Constitutional Court Decision 89Hun-Ma56 October 27, 1989, Supreme Court Decision 1,309

Constitutional Court Decision 92Hun-Ma7 dated June 26, 1992, Supreme Court Decision 4,462

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

[Judgment of the court below]

Cheong-gu residents with the jurisdiction of Gu

Attorney Seo-young et al.


Prosecutor of the East District Prosecutors' Office


In the case of the Dong Office of the Seoul District Public Prosecutor's Office in 1999 punishment No. 70543, the suspension of indictment against the respondent on December 24, 1999 is revoked because it infringes on the claimant's right to equality and the right to pursue happiness.


1. Case summary

A. On October 26, 1999, the claimant was admitted to the Dongdaemun Police Station as a suspect in violation of the Punishment of Violences, etc. Act, and the summary of the suspected crime is as follows.

On October 25, 199, at around 20:0 on October 25, 199, the claimant was a student closed in the third grade of ○○ University, and around 20:00, he opened rubber straws connected to water supply along with his father's non-claimer's non-claimer's house located in 90-1 located in Gangdong-gu Seoul, Gangdong-gu, Seoul, on the ground that he was doing cement joint operation, the victim Lee ○ (ma, 30 years old), who was on the way, was able to go beyond rubber string the rubber string, and he saw the above ○○ line (53 years old) while taking a bath for rubber string, she bleeped the clothes and boomed it. However, while continuing to do so, he did so, he did so by setting up the applicant's balthm and cutting it against it, and he did it by assaulting it.

B. On December 24, 199, the respondent investigated the above case and recognized the suspicion and suspended the indictment against the claimant.

C. On January 31, 200, the petitioner sought revocation of his act on the ground that the respondent's act does not constitute a crime as self-defense or a legitimate act, but recognized the charge and suspended indictment, and sought adjudication on constitutional complaint of this case on the ground that it was an erroneous disposition.

2. The parties' assertion

A. The claimant's assertion

(1) At the time of the instant case, the claimant was engaged in cement distribution for simple collection and repair of the above ○ line, the father, and the victim, who was under the influence of flabing, was able to flably boom the above flab, and fladled the flab, but did not comply with the flabing and bath the above flab, and flabing the flab, and flabing the flab, and flabing the flab.

Inasmuch as the situation leads to the situation where the victim was removed from the above police box immediately after making a report call, the victim was removed from the above police box, and the victim was tried to escape only, so the victim was placed behind the police box in order to prevent this. During the police box, the victim was broken away away from the awareness of the claimant, and there was no other assault against the victim.

The claimant prevented the victim from committing violence against the victim's right ○ line and hand over the victim to the police officer is a legitimate act of self-defense or a legitimate act that prevents illegality. However, the police station concluded that the victim and the claimant were committed by investigating only the victim and the claimant, and sent them to the prosecution with each prosecution opinion.

(2)On the other hand, the respondent to whom the above case was forwarded did not make any further investigation and recognized the facts of the respondent's challenge against the claimant as they are and ordered to suspend indictment on December 24, 199 (the victim on the same day shall be sentenced to fine 300,000 won). Such exercise of prosecutor's right infringes the claimant's right to equality and the right to pursue happiness.

(b) The respondent's answer;

(1) The claimant’s act does not constitute self-defense.

Since the claimant intends to flee from the scene of the victim, the victim was suffering from the victim's interest in order to prevent this, and therefore, the victim has already ceased infringing on the claimant's interest, so the plaintiff's act of the claimant's interest in this time cannot be the self-defense recognized only for the unfair infringement of the present "the present".

(2) The claimant’s act does not constitute a legitimate act.

The claimant asserts that the act of arrest of the victim was a legitimate act because he exercised the victim's force to prevent the escape of the victim until the police. However, for a legitimate act as a ground for excluding illegality, the claimant satisfies all the requirements of "reasonableness of means or method", "legal interests, balance of legal interests in infringement," "emergency", and "Supplementaryity that there is no other means or method" in addition to "justifiable cause of motive or purpose". The victim of this case was limited to the extent that he did flabbbling and breathing of the above authorized line. Thus, the victim of this case did not have reached the degree of arrest, but caused the victim's pain by preventing escape does not go against the balance and supplement of legal interests by excessive behavior.

3. Determination

(a) Examining the basic factual basis of the facts alleged in this case against the claimant in the record, first of all, the victim, who was under the influence of alcohol, booms the claimant's father's bath and breaths his breath, prevented the claimant from committing violence against his father (doing), and then, reported to the police box to the police box to prevent the victim from escaping until the police officer called out, can be analyzed through two actions, such as making a report to the father of the claimant, and making a report to the police box to the police officer so that the victim would not escape.

(1) An act of restraint

First of all, it may be deemed that the claimant's act was an act of defending the victim's current assault against the above ○○ line, his father, and there is considerable reason or it does not violate social norms. In other words, if the 30-year old-old-old-old-old-old-old-old-old-old-year-old-old-year-old-old-old-old-year-old-old-old-old-old-old-old-old-old-old-in-age-in-facting-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-

(2) Arrest

The latter act is also deemed a justifiable act. In other words, the claimant reported to the police and requested assistance, and the victim attempted to flee at the same time with the police box, and it is obviously probable in light of the evidence as seen earlier. If it is true, it is obvious that the victim was a flagrant offender of the crime of assault or destruction (which can be regarded as a crime of violence, etc., since it is the case at night). The claimant is also required to arrest the victim who attempted to flee, and even if the arrest of the claimant itself has exceeded a certain size, it is difficult to readily conclude that the act occurred in the process of suppressing the victim's failure in the process of drinking, and thus, it is not permissible under social norms.

(b)However, upon examining the results of the police investigation of this case, the claimant argues that the victim, while under the influence of alcohol, took a bath for his father, breathed his breath, and breathed his clothes, and thus, he left the police by putting the victim with her breathing. However, the claimant's assertion is completely inconsistent with the claimant's assertion that the victim, while under the influence of alcohol, was able to take the breath on the roadside and continue to take the breath and the breath of his breath in the future.

If so, as seen earlier, in dealing with the above case where the claimant's act seems to be considerably likely to be self-defense or a legitimate act, the defendant does not judge the defendant's interrogation protocol as to the claimant and the victim merely accepted his/her assertion as it is. If the claimant and the victim were to be examined and the defendant's father or the police officer who received the report at the time of the investigation and conducted a detailed investigation into the situation at the time of the investigation, and then, it should have discovered whether the claimant's act constitutes self-defense or a legitimate act. However, it is limited to the fact-finding that there was a proposal that combines only the part of mutual assault among the allegations by both parties.

As above, the disposition of suspending prosecution of this case is not an arbitrary exercise of prosecutor's right, and thus, the right to equality and the right to pursue happiness which are fundamental rights of the claimant has been infringed.

4. Conclusion

Therefore, the claimant's appeal of this case is reasonable, and therefore the suspension of indictment of this case is revoked, and it is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Yong-sik (Presiding Justice) and Kim Jong-hee-hee

The New Chang-gu, Lee Young-chul, Kim Jong-young (Presiding Justice)