Self-Defense: Requirements and Standards Explained

Self-Defense

Self-defense (정당방위) means that even when an act would otherwise constitute a crime, no offense is established where the act is a defensive response to a danger threatening oneself or another person nearby.

Self-defense is governed by Article 21 of the Korean Criminal Act.

Article 21(Self-Defense) (1) An act performed to defend one's own or another person's legal interest (法益) against a present and unjust infringement shall not be punishable where there are reasonable grounds for doing so.

(2) Where a defensive act exceeds the proper degree, the punishment may be mitigated or remitted depending on the circumstances (情況).

(3) In the case of paragraph (2), where the act was committed out of fear, fright (驚愕), excitement, or confusion at night or under other unsettling conditions, it shall not be punishable.

Requirements for Self-Defense

The requirements for self-defense are as follows.

There must be an unjust situation of infringement
The infringement must be present
The act must be a defensive act
There must be reasonable grounds

Self-Defense: Unjust Situation of Infringement

An unjust situation of infringement covers not only unlawful attacks such as assault, but also situations such as when an important object has fallen to the floor and another person, unaware of it, is about to step on it.

Self-Defense: Presence of the Infringement

The presence requirement means that the situation of infringement must be currently ongoing or there must be a risk that it will occur.

Self-defense is valid only from the point when it is foreseeable that any further delay in the defensive act would make defense impossible or extremely difficult, up until the infringement ends; it does not apply to past infringements or to infringements merely anticipated in the future.

Self-Defense: The Defensive Act

The defensive act in self-defense must be an act carried out to defend against the unjust situation of infringement.

The defensive act must be directed only at the person committing the unjust infringement, and it must not infringe upon the legal interests of a third party.

A defensive act may include not only purely defensive conduct but also active counterattacking defense.

Self-Defense: Reasonable Grounds

The reasonable grounds requirement means that the act must be objectively recognized as not being excessive in degree.

Even if the purpose is self-defense, if the necessity of the act and its compliance with social and ethical standards are not recognized as proportionate, it amounts to excessive defense and self-defense will not be established.

As shown above, because the requirements for self-defense are very difficult to satisfy, in practice there are many cases where self-defense is not recognized.

Self-Defense During a Fight

People sometimes believe that if you are struck first during a mutual fight, it counts as self-defense. However, this is not correct.

Where it is reasonable to view the assailant's conduct not as an act to defend against the victim's unjust attack, but rather as a situation in which the parties were fighting with the intent to attack each other, and one was struck first and then retaliated, that conduct has the character of both a defensive act and an offensive act at the same time, and therefore cannot be regarded as self-defense or excessive defense.

(Supreme Court 2000. 3. 28. Judgment, 2000Do228)

In other words, regardless of who was struck first, there is a high likelihood that it will be treated as mutual assault.

However, if you are recognized as having merely resisted, rather than attacked, while being one-sidedly assaulted, this may be recognized as self-defense.

The Police's 8 Standards for Self-Defense

In 2015, the National Police Agency announced 8 standards for self-defense.

According to these, the standards for self-defense are as follows

The conduct must be a defensive act
You must not provoke the other party
You must not use force first
You must not inflict more severe violence than the assailant
You must not use a weapon or other dangerous object
When the other party stops using force, you must stop immediately as well
The other party's degree of harm must not be more severe than your own
You must not inflict injuries requiring more than 4 weeks of treatment in total

The Need for a Self-Defense Attorney

As shown above, it is true that the requirements for self-defense are very strict and extremely difficult to satisfy.Accordingly, you should consult a criminal defense attorney to determine whether the requirements are met and to assess the evidence needed to prove that they are met, so that you can protect your rights.

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