논문 상세보기
과잉방위의 적용범위 KCI 등재
Excessive Self-defense and Its Applicable Range
Excessive self-defense is applicable if an act of self-defense exceeds the reasonable limits and lacks requisite appropriateness. Excessive self-defense is not punishable under Article 21, Clause 3 of Criminal Law, if it is caused by fear, astonishment, excitement or confusion under anxious circumstances such as during night time. According to Article 21, Clause 2, in case of excessive self-defense under extenuating circumstances, either a reduced sentence or is unpunishable. The illegality and liability of excessive self-defense under Article 21, Clause 3 are reduced and besides its liability is expirated because it can not be expected that an offender acts within legal boundaries under such circumstances. Under Article 21, Clause 2, the illegality and liability are reduced and it is unpunishable because it lacks the necessity for punishment.
Excessive self-defense is a complicated matter connected with criminal liability, illegality and sentencing. It is not easy to grasp the nature of excessive self-defense and its applicable range because it borders on self-defense and mistaken self-defense, and is indistinguishable from them. The Supreme Court has not clarified its stand on the requisites of excessive self-defense. The Supreme Court has interpreted not only the requisite appropriateness of self-defense, but also the requisites of excessive self-defense strictly. It ruled a decision upon the above mentioned first case as excessive self-defense and the second case as self-defense. However, it should have ruled that self-defense was justified regarding the first case and ruled the second case as mistaken excessive self-defense with either reduced liability or an expirated sentence.
1. 사실개요
2. 원심판결: 서울남부지방법원 2004.7.2.선고 2004고단1556판결
3. 대법원 판결
[대상판결 2] 대법원 2004. 3. 25. 선고 2003도3842 판결
1. 공소사실의 요지
2. 피고인의 주장
3. 원심판결: 창원지법 2003. 6. 17, 2003노167판결
4. 대법원 판결
5. 주문
[판례연구]
I. 문제의 제기
II. 과잉방위의 구조 및 법적 성질
III. 과잉방위의 성립요건
IV. 오상과잉방위
V. 판례평석
