In case of injury during a sports game, to punish the offender without exception might lead to withering of sports activities, whereas to get the offender exempted on the mere ground that injury occurred in the course of a sports game might cause plummeting of either legal stability or law-abiding spirit. So, it is vital to draw a bright line between criminal liability and moral obligation with regard to injury during a sports game. Scholars suggest the theory of victim's consent, the theory of tolerated danger, the theory of social reasonableness or the theory of non-legal issue as sources of justification to limit criminal liability. Each theory has its own merits and demerits. In order to punish the offender who inflicted injury by negligence during a sports game, general requirements of 'infliction of injury by negligence' occurrence of injury, ― causal relationship between offender's act and injury, breach of objective duty of care, etc.― should be met. Objective duty of care can be derived from statutes, past practices, social norm, logic, empirical rule or court decisions. In a sports game however, rules of the game may be the most important source of objective duty of care. As rules of the game enumerate matters that require attention in the entire course of a sports game, player's act against these rules can be treated breach of objective duty of care. It is excessive to deem all of the acts against rules of the game, including minor ones, breach of objective duty of care in light of the way a sports game is played as well as autonomy enjoyed in the sports field. Unless injury resulted from the act that had gone against rules of the game beyond reasonable expectation, the offender should not be found to breach objective duty of care. Rules of the game differ from type to type. In so-called type of rivalry sports games, rules of the game, while allowing the player or the team to make physical attack on the opponent to some extent, focus on diminishing or eliminating the possibility of injury. In so-called type of individual sports games, rules of the game prohibit dangerous act and call the attention of the players to avoid injury. To sum up, breach of rules may be treated more harshly and less flexibly in type of individual sports games than in type of rivalry sports games. The judgment under review in this paper has something to do with golf game, which belongs to type of individual sports games. The judgment thinks highly of rules of the game as source of objective duty of care. It also denies criminal liability in case of injury resulting from minor breach of rules of the game, which would reasonably be expected. On the face of it, the judgment seems to adopt the theory of social reasonableness. However, considering the courts usually dub social rule social reasonableness, the view taken by the judgment might be different from the theory of social reasonableness advocated by the scholars. The theory of social reasonableness relates to negation of applicability of criminal statute, whereas the view taken by the judgment might relate to negation of illegality. In such type of individual sports games as golf, the players enjoy game without physical contact with other participants, expecting reciprocal care to avoid unwanted injury. So it is somewhat improper to adopt the theory of victim's consent as source of justification to limit criminal liability in golf game. The judgment, in similar context, seems to have dismissed defense of 'victim's consent' raised by the accused. Even in case that the offender is held liable for infliction of injury by negligence with regard to injury during a sports game, the possibility to get relief is still open. If the offender reaches an agreement with the victim, he or she is able to avoid criminal punishment according to Art. 266 Para. 2 of the Penal Code.

[대상판결] 대법원 2008. 10. 23. 선고 2008도6940 판결
 1. 사건개요
 2. 판결요지
 〔연구〕
  I. 문제의 제기
  II. 운동경기 중 발생한 상해와 형사책임의 한계
  [참고문헌]
  [Abstract]

• 김우진(서울중앙지방법원 제22형사부 부장판사) | Kim, Woo Jin