Whether a harmful act committed during a fighting constitutes a self-defense or excessive defense (negative)

In a case where it is reasonable to deem that the perpetrator’s act was at the first place with the intent of an attack rather than to defend the victim’s unjust attack, and that the act was at the same time an attack and went against it, the act is at the same time an attack, and thus, it cannot be deemed as a self-defense or excessive defense, since it has the nature of an attack.

Article 21 of the Criminal Act

Supreme Court Decision 71Do527 delivered on April 30, 1971 (Gong19-1, 166), Supreme Court Decision 83Do3020 Delivered on May 22, 1984 (Gong1984, 1162), Supreme Court Decision 86Do1491 Delivered on December 23, 1986 (Gong1987, 271), Supreme Court Decision 92Do1329 Delivered on August 24, 1993 (Gong193Ha, 2679)

Defendant

Prosecutor

Attorney Kim Young-ok

Seoul District Court Decision 99No5075 delivered on December 23, 1999

The judgment of the court below is reversed, and the case is remanded to the Seoul District Court Panel Division.

The court below held that at around 10:00 on August 19, 1996, at the victim's house located in the south of the defendant's wife located in Gangseo-gu Seoul Airport Dong, Gangseo-gu, Seoul, 664-13 cm in length, the victim's left side buckbucks, etc. 21cm in length and 14 days off to the left side of the victim where treatment is required for about 14 days to the victim, but when the victim bucked with the non-indicted who was the non-indicted her husband at the time when the victim bucked in drinking and did the victim's head, and the non-indicted bucked with the victim. During that process, the court below held that the defendant's act was hard to defend the victim as the victim's body because his body size exceeded 85 kilograms and the victim's body size was 85 kilograms, and the defendant's act of taking advantage of the above circumstances and degree of his injury caused to the victim's body.

However, even if the facts are as above, it is reasonable to view that the defendant's act was done with the intent of attacking one another rather than with the intent of attacking the victim's unfair attack, and the act was committed against it. In such a case of fighting, since the harmful act is an act of attack at the same time as the act of attack, it cannot be viewed as an act of self-defense or excessive defense (see Supreme Court Decisions 71Do527, Apr. 30, 197; 92Do1329, Aug. 24, 1993, etc.).

Nevertheless, the lower court erred by misapprehending the legal doctrine on excessive defense that the Defendant’s act constitutes an excessive defense, thereby adversely affecting the conclusion of the judgment. Therefore, the ground of appeal assigning this error has merit.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition.

Justices Cho Chang-chul (Presiding Justice)