상단여백
HOME National Social Affairs
Can Defending Action be Interpreted as Offending Action?

At dawn, a thief broke into a house. After the son in the house (Mr. Choi) noticed this, he knocked down the thief. Even after the thief blacked out, Mr. Choi did not stop hitting the thief for 20 minutes. However, in that process the thief who was hit in the head with a clothes horse, became brain dead. The court judged this as excessive violence, and sentenced Mr. Choi 18 months of prison. This judgment has led many arguments about current law of self-defense. Some argue that 18 months of prison was too heavy, since it was a self-defensive act. On the other hand, others say that as the Mr. Choi’s action was too severe, the judgment of the court can be seen acceptable. The Sungkyun Times (SKT) delved into this issue.

Definition

Before discussing about this issue, it is important to understand what self-defense is. The following are laws related to self-defense.

As the thief in the story broke into the other person’s house at night, the son's action looks as a self-defensive act in terms of the third clause. However, the court judged him to be guilty, because his action was too severe even regarding the circumstances. When the action exceeds its limit, it is called excessive self-defense. Moreover, according to the law, this kind of action is punished, but in a reduced or exempted way concerning the circumstances. There is another word called mistaken self-defense. This literally refers to the situation of mistakenly defending something, thinking it as a violent action, which is actually not. For example, when one person misinterprets a delivery man as a thief and assaults him, that action becomes a mistaken self-defense. Of course there is no reduction in the sentence. This story is certainly not a mistaken self-defense since the son's action was against the thief who broke into his house.

Criticism

Many people think that the judgment of the court was too strict. Moreover, they criticize the law of self-defense and the judgment of this case. There seems to be some problems in the judgment. Firstly, it is odd to see that clothes horse is a dangerous weapon. The attorney of Mr. Choi argued that clothes horse is hard to be regarded as a dangerous weapon, considering its weight and material. Secondly, involving the death of victim’s brother in the judgment which is irrelevant with the actual case is unreasonable. Not only is it hard to get self-defense judgment, but its law is also ambiguous. Even if it is a defending action, it is punished if it excesses its limit. However, the exact limit is not mentioned in the law. Besides the law of self-defense, according to the investigation standards of the police, it is also hard to get the self-defense judgment. Here are eight standards in police investigation procedures of self-defense, which were announced by the National Police Agency in 2011.

These strict rules were criticized by people, and many satires were made. One of the satires about self-defense says that if a thief breaks into one's house, the owner has to politely ask five questions and then have a self-defensive act. Those questions are these: Did you bring weapon? Did you just come to steal something? Are you going to run away? How old are you? Are you suffering from any illness? Of course, when someone breaks into the house, no one can manage to ask all of these things calmly. These strict rules were criticized by people, and many satires were made. One of the satires about self-defense says that if a thief breaks into one's house, the owner has to politely ask five questions and then have a self-defensive act. Those questions are these: Did you bring weapon? Did you just come to steal something? Are you going to run away? How old are you? Are you suffering from any illness? Of course, when someone breaks into the house, no one can manage to ask all of these things calmly.

Self-Defense in America

As the strict judgment of self-defense law in Korea seems to have many problems, people are having interest in America's self-defense law which is different from Korea. For example, it is easier to get judgment that the action is self-defensive action by the court. However, America’s self-defense law which is implying opposite position against Korean law still have problems. America's self-defense law is different from state to state. In some states they have duty to retreat, which obligates the people to retreat in the violent circumstances. Therefore, people have to first try to avoid those situations and then use force to defend oneself. However, people do not have to retreat in every situation. There are also situations when you do not have to retreat, and it is called castle exception. Castle exception indicates that people do not have to retreat when they are in their own home. For example, if the rule is applied to Mr. Choi's action in the story, he would not have been punished. This law shows why Americans use their guns to protect themselves, when they are at home. This law could be used to avoid terrible situations, but it could make another victim. The best example would be Basil Pararsiris case. In 2007, America, Basil Parasiris was suspected of drug trafficking, and the police tried to search his home with a warrant. However, as they had to make sure that Parasiris does not destroy the evidence, they just broke down his house without knocking. Against this action, Parasiris fired two shot and killed one of the officers. First, he was charged of murder. However, he argued that his action was only to protect him and his family. When they broke in his home, they did not identify themselves. Moreover, he did not have evidence to support drug trafficking. In June 2008, he received 20 months of sentence for storing illegal firearms, then after five months of prison he was paroled. Even though he killed the police officer, he did not get any punishment, because of the law protecting him. Besides this case, there are many situations similar to this. Moreover, many victims appear because of these situations. This situations show that America’s loose attitude against self-defense law also has a problem.

Mr. Choi is going to have another trial soon. Moreover, as the parliament is considering proceeding with amendment, law of self-defense would be revised. Like Parasiris’s case, victims of this law should not be made. However, victims should not also be imprisoned due to an action of self-defense. Both strict and loose attitude toward self-defensive action would create another victim. Therefore, a neutral approach needs to be made when revising the law.

신원철  swonchul@skku.edu

<저작권자 © THE SUNGKYUN TIMES, 무단 전재 및 재배포 금지>

icon인기기사
기사 댓글 0
전체보기
첫번째 댓글을 남겨주세요.
여백
여백
많이 본 뉴스
    여백
    Back to Top