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The Comparative Study on the Self-Defense of South and North Criminal Law

  • DONG-A LAW REVIEW
  • 2015, (66), pp.103-136
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

Ji-Yun Jun 1

1연세대학교

Accredited

ABSTRACT

Both South and North Criminal Law have a regulation of the self-defense and if the situation corresponds to self-defense, they don't punish the defendant. However, they have important differences between South and North Criminal Law about specific meanings and contexts of self-defense. First, there are no differences about regulations of self-defense in South and North Criminal Law. Second, South and North Criminal Law are common that self-defense is an act which has significant reason to protect current unwarranted infringement about self or others' legal interests. Third, while North Criminal Law admits that self-defense system is a very meaningful in respect of people's struggle against crime, South Criminal Law accepts it in passive sense. Fourth, North Criminal Law has collectivist characteristic of self-defense, but South Criminal Law is based on two primary benefits which are benefits of self-protection and defense of law and order. Fifth, among the legal interests protected by the self-defense, there is a dispute that self-defense for national·social legal interests can be adopted in South Korea. In contrast, self-defense is primary understood for national·social legal interests in North Korea. Sixth, North Criminal Law doesn't bring up the problem about noticeable imbalance when they judge reciprocality of anti-state crime, without regarding to principle of balance. On the other hand, South Criminal Law denies the self-defense because they make a sense the noticeable imbalance of infringement legal interests and protection legal interests exceeds the scope of reciprocality. Seventh, North Criminal Law accepts both intensive excessive force in self-defense (intensiver Notwehrexzess) and extensive excessive force in self-defense(extensiver Notwehrexzess), while South Criminal Law only admits intensive excessive force in self-defense (majority opinion). North Criminal Law understand that the legal effect of self-defense is the grounds for sentencing. However South Criminal Law comprehends grounds for discretionary or necessary mitigation. Finally, if murder is happened above the self-defense's extent in North Criminal Law, they reduce a punishment in murder in excess of self-defense which is the lightest penalty, not applies the murder.

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