독일⋅한국⋅일본의 정당방위 판례의 차이점과 그의 법문화적 배경

Abstract

In judging whether one’s use of force was an act of self-defence, German law does not go through interest balancing and acknowledges all the acts that are needed to defend one’s self or others from an immediate unreasonable threat as self-defence. On the other hand, Korean and Japanese laws do go through the balancing. Accordingly, the range of the behaviors that are acknowledged as self-defence seems to be narrower in Korean and Japan than in Germany. The reason why Germany acknowledged wide range of self-defence criteria can be traced to the establishment and settlement of liberalistic law and order. The individual’s domain which is free from government interference gradually expanded. This change in law and order was also reflected on the self-defence law:The clauses that limit the range of self-defence criteria were abolished one-by-one. By abolishing the regulations that limit thebenefit and protection of the self-defence law as well as the clauses that demanded balancing, all the necessary defensive behaviors are now acknowledged as self-defence. On the other hand, Korea and Japan did not go through the establishment and settlement of liberalistic law and order. After Western society had established the liberalistic law and order, Korea and Japan obtained the resulting legal system but their societies’law and order did not fundamentally change as Western societies did. Consequently, the liberalistic law and order only exists in the textbook.This broken reality was reflected on the precedents and people have limited rights to freely defend themselves from immediate unreasonable threat. In this point of view, Korea and Japan are alike. However, Korea acknowledges relatively wider range of defensive acts as self-defence when they are conducted against offensive acts that are morally condemnable. This is believed to be due to the Korean legal culturewhere the power of social condemnation strongly and explosively aggregates at morally condemnable acts.