정당방위의 이론과 현실 = Self Defense: The Theory and Practice

다국어 초록 (Multilingual Abstract)

Among various theoretical frames of criminal law, the justification theory would probably be rated towards perfection, not only in terms of structure but also in terms of its contents. Justifiable act of article 20, self defense of article 21, act of necessity of article 22 are among the five categories of the types of justification. Although these five share the ultimate conclusion that they are being justified, each of them has got its unique process in drawing that conclusion. Hence, it is quite significant in both theory and practice, to study the subtle differences between each type of justification. Act of necessity is, along with self defense, certainly the most significant one among numerous types of justification. However, in spite of its theoretical abstruseness and complexity, the bare reality over juridical applications of act of necessity is more or less miserable. The reason why I have used the term so drastic as miserable, is because its usage in legal practice is desperately rare. There had been hardly any other court case except one which had quoted the article that mentions act of necessity. For every academic work is supposed to aim at the betterment of human life, criminal law theory cannot be something exceptional. In other words, what we call ``theory for the theory`` would end up being understood meaningless in the academic fields of law. Interestingly enough, we may perceive the same situation in the practice of self defense. Just like the case of act of necessity, no one would doubt the academical significance of the theory of self-defense. It is placed in the very beginning of vast majority of criminal law textbooks. However, it seems that the Supreme Court had hardly ever recognised self defense seldom in the practice. This is the point where my dubious question on the reality of self defense had arose. Considering the ever-so-splendid theoretical pavement, my scholarly curiosity could not help of being aroused, facing such humble reality of self defense. Then we may be confronted with the following questions: had the original self defense cases ran away to somewhere? If they did, where are they hidden, indeed? In addition, what is the purpose of hiding, and are those purposes legitimate enough? If such enormous disparation between the theory and practice cause paradoxic situation, what could be done to solve the paradox? Efforts of solving these questions are what this short essay is ultimately aimed at. I doubtlessly believe that such efforts will in turn contribute to fix and to repair the structure of justification theory. Moreover, after reading the last page of this thesis, I hope the readers could get a tip on what sort of criminal law concepts should be avoided of being used in practice. Concepts such as social ethics, socially accepted rules, or general thoughts on justice would be among the typical examples of such.

참고문헌 (Reference)

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