An Examination Of The Scope Of Self-Defense

1. Introduction

As incidents involving the use of physical force resulting in bodily harm or the suppression of another person's bodily liberty, such as kidnapping or abduction abroad, have been on the rise, the need for systematic social control measures to address such offenses has emerged as a major national concern. In particular, at the time of the Constitutional Court Decision 2021Hunma994 (decided on August 31, 2023), which is one of the key cases discussed in this article, a series of so-called "motiveless crimes," including the knife attack incident at Sillim Station, had occurred, making it necessary for the highest judicial authority to reaffirm the scope of self-defense from a legal perspective.

This article analyzes the scope of "self-defense," a legal doctrine designed to prevent unlawful physical infringement, through an examination of judicial precedents and offers the author's perspective on key factors to be considered in determining whether an act falls within the scope of self-defense.

2. General Requirements for Self-Defense: Constitutional Court Decision 2021Hunma994 Decided on August 31, 2023, Where Suspension of Prosecution Was Revoked

A. Case Summary

The applicant in this case was assaulted by her husband during a quarrel at their residence located in Namdong-gu, Incheon, at approximately 9:06 a.m. on January 22, 2021, resulting in a fracture in her lower back. While attempting to take away a cell phone from her husband to call the police, she scratched his arm with her fingernail.

Under these factual circumstances, the prosecution imposed a suspension of prosecution on the applicant on the premise that both the applicant and her husband had assaulted each other, determining that the applicant's act of scratching her husband's arm constituted an assault.

In response, the applicant filed a constitutional complaint with the Constitutional Court, arguing that although she injured her husband while pushing him away, such conduct merely constituted self-defense, yet the respondent recognized the existence of a criminal act and imposed a suspension of prosecution against her, thereby infringing upon her rights to equality and to pursue happiness.

B. Constitutional Court Judgment

The Constitutional Court revoked the prosecutor's disposition and set forth the following legal doctrine: "Even when two individuals appear to be fighting each other, if, in substance, one party unilaterally inflicts an unlawful attack while the other uses physical force merely as a means of resistance to protect oneself and to escape from such attack, and unless the latter's act constitutes a new and active act of attack, such act is deemed socially acceptable and thus its unlawfulness is excused" (see, e.g., Constitutional Court Decisions 2011Hunma743, Aug. 29, 2013; 2017Hunma26, Apr. 27. 2017; 2019Hunma1419, May 27, 2020).

Based on this doctrine, the Court held that, "(i) the applicant's act of assault occurred in the course of resisting her husband's prior unlawful use of physical force; (ii) although the applicant sustained a serious bodily injury requiring approximately twenty-eight days of medical treatment, the degree of physical force she used in response was relatively minor; and (iii) considering that the applicant, a woman, scratched his arm with her fingernails to attempt to resist and free herself from his grasp while being unilaterally kicked and dragged by her husband, and that her conduct appears to have been a minimal defensive measure to avoid the assault, it is sufficient to regard the applicant's act as a socially acceptable and justifiable act or an act of self-defense, representing a passive use of physical force to protect herself from her husband's proactive, unilateral, and unlawful attack and to escape from it."

C. Implications of the Judgment

As mentioned earlier, at the time of the judgment, public concerns in Korean society was rising over "motiveless crimes" targeting both specific and random individuals. Accordingly, the Constitutional Court appears to have deemed it necessary to emphasize and clarify to the public that when a person uses physical force solely to defend oneself and to escape from an unlawful assault, such conduct is regarded as socially acceptable and exempt from unlawfulness, unless it constitutes another active attack.

The decision in this case is regarded as concretizing the language of Article 21(1) of the Criminal Act, which provides that "an act performed to defend one's own or another person's legal interest from a current and unjust infringement shall not be punishable if there are reasonable grounds for the act," and the wording of Article 8(1) of the Punishment of Violences Act, which provides that "when a person who has committed a crime prescribed in this Act inflicts or attempts to inflict harm or injury on another person with a deadly weapon or other dangerous article, any act done to prevent or defend against such harm or injury shall not be punished."

This decision reaffirmed to the public that "self-defense is not an abstract concept existing only as a legal expression, but a ground for justification that can be actively recognized by judicial authorities." At the same time, since the degree of defensive conduct in this case was relatively minor, it was a comparatively straightforward matter for determining whether the "reasonableness" requirement of self-defense was satisfied, taking into account the balance between the legal interests infringed and those protected.

3. Case Where Self-Defense Was Not Recognized as It Was Deemed as Another Active Attack: Seoul High Court (Chuncheon) Decision 2015No11 Decided on January 29, 2016

A. Case Summary and Court Judgment

The case most frequently cited as an instance where the use of physical force as a defensive measure was deemed another active attack, and thus not recognized as self-defense, is the so-called "thief brain death case" [Chuncheon District Court (Wonju Branch) Decision 2014Godan444 (decided on August 13, 2014); Seoul High Court (Chuncheon) Decision 2015No11 (decided on January 29, 2016)]. In this case, the defendant, who returned home at around 3 a.m. after consuming alcohol, discovered a thief in his house and beat him, resulting in brain death. The court held that, unlike the defendant's initial act of subduing the thief by force, his subsequent conduct of repeatedly striking the thief, who had fallen and was attempting to flee, with his feet, a clothes horse, and a belt constituted another active attack and therefore could not be justified as self-defense.

Although some have questioned whether the defendant's conduct could be considered excessive self-defense, the court made it clear that "any additional attack against an individual who has already been subdued or has lost the intent to attack and is attempting to flee" cannot be regarded as either self-defense or excessive self-defense. Such conduct is also regarded as a criminal act even in certain jurisdictions of the United Kingdom and the United States where the Castle Doctrine or Stand-Your-Ground Law, which allows the use of force, including with a weapon, in response to an intruder who poses a threat within one's domain, applies.

B. Implications of the Judgment

The legal doctrine distinguishing "another act of attack" from a "defensive act" is reasonable, and its practical significance lies in the fact that, without such a distinction, the legal system might effectively condone indiscriminate acts of violence. In particular, in this case, since the thief did not display any intent to assault and merely attempted to flee, yet the incident resulted in death by bodily injury, it appears that the court was obliged to draw a strict distinction between a defensive act and another act of attack.

However, it should still be taken into account that, in most real situations, it is difficult for the persons who were initially attacked to determine whether their act constitutes another act of attack or remains within the scope of self-defense or excessive self-defense. In addition, serious consideration should be given to the unlawfulness and blameworthiness of the original aggressor who put the person who is initially attacked and had no criminal intent into a state of fear and shock, thereby provoking another act of attack. If such factors are not sufficiently considered, the person who was initially attacked, often an ordinary law-abiding citizen, may feel alienated from a legal system that fails to provide adequate protection in an unforeseen situation requiring defensive action. Furthermore, reflective attention should be paid to the proposition that "after an urgent and fearful process of defense in a situation where rational judgment is difficult has ended, the judicial authority retrospectively evaluates the act with cold reason" may, in itself, operates as a limitation on the recognition of self-defense.

4. Conclusion

This article examined the scope and limitations of self-defense through two judicial precedents. According to these cases, first, a defensive act of a degree that is socially acceptable should be actively recognized as a ground for justification not only at the judicial stage but also during investigation and prosecution. Second, although another act of attack that exceeds the reasonable degree of defense cannot, in principle, be regarded as self-defense, the determination of whether an act constitutes another act of attack should be made carefully and comprehensively, taking into account the overall factual circumstances, including the unlawfulness of the original aggressor, the urgency of the situation, as well as the reasonableness of the act, and the public's legal perception and sentiment toward self-defense.

In particular, as cases involving the use of physical force resulting in bodily harm or the suppression of another person's bodily liberty, such as kidnapping or abduction abroad, have become matters of concern both domestically and internationally, it is important to recognize that if the court focuses solely on the lack of reasonableness in a defensive act taken during the victim's counterattack, the resulting judgment may diverge from the legal perception of ordinary law-abiding citizens and may fail to align with substantive justice.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.