각국의 정당방위 판단기준과 국민의 법의식 = Criteria for Self-defense Judgment and the Public’s Legal Consciousness in Overseas Jurisdictions

다국어 초록 (Multilingual Abstract)

The modern legal system can be said to consist of legal rules, legal systems, and legal culture; and all legal rules and systems reflect respective country's legal culture and people's consciousness concerning the law. The present research delved into comparisons of legal systems in South Korea, the United States, Germany and Japan with a focus on rules, cases and public’s consciousness of the law. Before beginning the research, it was hypothesized that in Western culture, where individualism and liberalism are strongly rooted, would allow an expansive interpretation of self-defense, but Eastern cultures affected by collectivism would limit self-defense to a narrow interpretation. However, South Korea has actively embraced change to assert personal rights and call for justice through law since being exposed to Western liberalism and systems of law, so this study endeavored to look into whether public opinion has become critical of judicial precedents that does not actively allow self-defense.
By limiting our research to South Korean self-defense trials with jury participation, an analysis showed that jury verdicts did not differ much from the court's final decisions, and the experimental study conducted to realize the South Korean public's legal consciousness concerning self-defense found that the percentage of the population that acknowledges defense was not high. In cases of South Korea and Japan, the statutes concerning self-defense used the term unfair/immoral invasion, showing that they were under the influence of traditional legal culture compared to the U.S. and Germany, which define self-defense as a response to unlawful attack. Moreover, the fact that there was a high percentage of people in the U.S. that admitted self-defense even when the pro forma requirements for its establishment were not met, coupled with precedents that admit Battered Woman Syndrome and allow for self-defense to be established by the strength of individual experience, points to how U.S. citizens' consciousness of law that judges by internal factors rather than external or circumstantial factors, under the influence of the values of liberalism. On the other hand, in the case of Germany, a parallel could be drawn to the fact that unlike judicial precedents that traditionally admit an expansive interpretation of self-defense, a sense of law is gradually forming among the people that reject an excessive admission of self-defense by methods such as weighing the benefit to the law itself in sentencing, and discussions to limit self-defense is gradually expanding.
People's consciousness of the law is not fixed, but changeable. There's even a good probability that legal experts' and citizens' criticism toward judicial precedents on self-defense will gradually become a widely-held public consciousness on self-defense. Hopefully, this research can serve as a reference when courts set the criteria for judging self-defense that fits public consciousness of the law, by methods such as differentiating the criteria based on case types, in preparation for a changed public consciousness of the law concerning self-defense.