Blog, Criminal

It’s generally recognized around the world that everyone has a right of self-defense, which means that they can use reasonable force to defend themselves or others, without being charged. In Korea, it is stipulated in Criminal Act, Article 21(1).

Article 21 (Self-defense)

(1) An act which is performed in order to prevent impending and unjust infringement of one’s own or another person’s legal interest shall not be punishable if there are reasonable grounds for that act.

According to the article above, if you commit a certain act (e. g. hitting someone), there are three conditions to be met to be recognized as “self-defense.”

One, “impending and unjust infringement.” There should be an “infringement” for your own or another person’s legal interest, and that infringement should be “impending” and “unjust.”

• It can’t be self-defense if the infringement was already done in the past. For instance, if a person is currently trying to break a window of your house, the infringement is “impending,” so you can use force to stop them as a self-defense. But if the person already broke the window and is now running away from your wrath, and you run after them and beat them with a crowbar, that’s not self-defense. (96Do241 delivered on April 9, 1996)
• It can’t be self-defense if the infringement is not unjust. For instance, if a police officer is trying to “unjustly” arrest you, you can use force to get out of their hands as self-defense. But if the officer is trying to arrest you upon the legitimate warrant issued by the court, you’d better be obediently arrested without resistance. (99Do4341 delivered on July 4, 2000)

Two, “performed in order to prevent infringement of one’s own or another person’s legal interest.” The purpose of your act should be protecting your own or another person’s legal interest. It can be any legal interest, including your dear life, your health, property, freedom, legal rights, or even social reputation. 

Three, “reasonable grounds.” There should be reasonable grounds for your act, which means you shouldn’t use excessive force.

• There was a case where the police officer shot the victim on his chest, instantly killing him, because he was resisting with a knife. The action of the police officer was NOT recognized as self-defense because there were other ways to subdue him without killing him, such as using a gas gun, or shooting his leg instead of chest. (91Da19913 delivered on September 10, 1991)

I’m afraid I should tell you that the Supreme Court interprets Article 21 very narrowly. You might be surprised, especially if you are from American background, because Korean courts are very, very stingy about acknowledging self-defense than American courts.

The typical example is when there is a fight between people. If someone hit you first, so you hit them too, and it became a fight, there is little chance the Korean court would grant justification for your actions upon self-defense, even if the other person attacked you first. According to the Supreme Court of Korea, the intention of using violence during a fight is to attack the other person as well as defending themselves. So, it cannot be “self-defense” since it’s attack and defense occurring at the same time. (92Do1329 delivered on August 24, 1993)

There is a case where a brother (Person A) beat his sister while her husband (Person B) was watching, so a fight occurred between Person A and Person B. Person A was a big guy who weighed more than 85 kilograms, while Person B was the skinny guy who weighed only 62 kilograms. Person A threw down Person B unto bed and straddled his chest, pressing his neck to strangle him. Person B, struggling to breathe, grabbed a fruit knife and stabbed Person A’s leg. When Person B was charged with causing bodily injury, he pleaded for justification upon self-defense, but the Supreme Court denied it, because it occurred during a fight. (2000Do228 delivered on March 28, 2000) This judgment has been criticized by several jurists since it looks like a legit self-defense case, but the Supreme Court still hasn’t changed its mind about this.

So, if you ever be attacked by someone, we highly recommend you to just get away from that place instead of fighting back. If your attacker press charges against you for violence or injury, there’s no guarantee that your action would be recognized as self-defense.