Overview of the Case

First, organize the facts of the case.

Ko argued with coworker A, who lived in the same company dormitory, in the dormitory dining hall. A, who was short-tempered, suddenly took out a small knife with a 10-centimeter blade and the handle portion struck Ko on the head with its handle and attempted to continue the attack.

Ko responded by punching A in the face several times and kicking A in the abdomen, causing A to fall backward. This is the first assault.

A then attempted to flee to his room, but Ko, still angry and excited, chased him, caught him in front of his room, kicked him in the face two or three times, and knocked him down once more from behind. This is the second assault.

A struck the back of the victim's head, causing a serious injury requiring one month of treatment A suffered an injury, but it is unclear whether the injury was caused by the first or second assault.

Main Issues in the Case

The two principal issues that must first be organized in this case are as follows.

1. Does the first assault by A self-defense fall within this category?
2. Does the second assault by A excessive self-defense whether it constitutes excessive defense or simply an unlawful act causing injury.

Although the problem statement also refers to necessity, this is a case involving retaliation against an unlawful attack by another person. The central issue is therefore constitute self-defense or excessive self-defense under Article 36 of the Penal Code? self-defense; necessity is not ordinarily the main issue.

Does the First Assault Constitute Self-Defense?

First, examine the first assault.

For self-defense to be established, an imminent and unlawful infringement Self-defense requires an imminent and unlawful infringement and an act taken to defend one’s own or another person’s rights against that infringement. an act unavoidably performed in response these requirements must be satisfied.

Here, A suddenly produced a small knife, struck Ko on the head with the handle, and attempted to continue attacking. This clearly constituted a real and imminent unlawful infringement an imminent and unlawful infringement of Ko’s bodily integrity.

Ko responded by punching A in the face and kicking A in the abdomen, causing A to fall. Because A possessed a knife and had already struck Ko once on the head, Ko can be regarded as having needed to counterattack to prevent further assault.

Accordingly, the first assault was made with an intent to defend and for the purpose of eliminating an imminent and unlawful infringement, and therefore generally within the bounds of proportionality can be evaluated as falling within this situation.

Therefore, regarding the first assault, self-defense is established and the unlawfulness of the act is negated. this is the appropriate interpretation.

Does Necessity Defense Arise in Relation to the First Assault?

For completeness, consider briefly whether necessity could apply.

Necessity applies to an unavoidable act undertaken to avert a present danger, provided that the harm caused does not exceed the harm sought to be avoided. Ordinarily, however, necessity concerns dangers other than an unlawful human attack, such as natural disasters or attacks by animals. is a doctrine designed with this situation in mind.

Because the present case concerns retaliation against A’s unlawful human attack, the analysis should center on self-defense. Necessity ordinarily need not be used to resolve this case.

Does the Second Assault Fall Within the Scope of Self-Defense?

Next, examine the second assault.

At the time of the second assault, after A had been knocked down by the first assault, A was attempting to flee back to his room was attempting to flee. The key question is whether, at that point, there still existed an imminent and unlawful infringement against Ko. whether the imminent and unlawful infringement was still continuing is.

A was fleeing, so it is natural to conclude that the imminent infringement present during the first assault had already ended. Ko nevertheless chased A because his anger and excitement had not subsided. The second assault was therefore no longer defensive but rather retaliation or punishment takes on the character of

Accordingly, the second assault cannot be regarded as a defensive act against an imminent and unlawful infringement, and self-defense does not apply.

Is the Second Assault Excessive Defense or Simply an Unlawful Assault Causing Injury?

The next question is whether the second assault can be treated as excessive defense.

Excessive defense refers to an act that is recognized as defensive conduct against an imminent and unlawful infringement but exceeds the necessary or proportionate degree. is established in such a situation.

In the second assault here, however, A was already fleeing and the infringement itself can be regarded as having ended. It is therefore more appropriate to treat the conduct not as excessive defense, which presupposes a defensive situation, but as an ordinary assault causing injury This is the basic evaluation.

It could nevertheless be argued, if one places weight on the close temporal and spatial connection between the first and second assaults and on Ko’s continuing intense fear or excitement, that the defensive situation extended in a broader sense. Given that A was fleeing, however, such an evaluation is quite difficult.

Therefore, regarding the second assault, ordinary bodily injury, rather than excessive self-defense, is established this is the appropriate view.

How Should We Address the Uncertainty Over Whether the Injury Resulted from the First or Second Assault?

In this case, A suffered a serious injury to the back of the head requiring one month for recovery, but it is unclear whether it was caused by the first or second assault. This point is extremely important in determining Ko’s criminal liability.

Because the unlawfulness of the first assault is negated by self-defense, Ko is not liable for an injury caused by that first assault. By contrast, if the second assault is an unlawful act causing injury and the serious injury resulted from it, Ko would bear heavier liability.

However, if it cannot be proven which assault caused the serious injury, causation between the unlawful second assault and the serious injury cannot be established. 。

Because criminal liability must be based on strict proof, if this point remains uncertain, Ko cannot be held responsible for the serious injury itself. should be the proper conclusion.

What Is the Scope of Ko’s Criminal Liability?

Considering the foregoing as a whole, the unlawfulness of Ko’s first assault is negated as self-defense.

The second assault, by contrast, was retaliatory conduct after the infringement had ended, so neither self-defense nor excessive defense applies. Therefore, at a minimum, the establishment of the offense of assault or bodily injury becomes an issue. 。

However, because it is unclear whether A’s serious injury resulted from the first or second assault, if it cannot be proven that a concrete injury resulted from the second assault, the second assault may result only in liability for assault. there is this issue.

On the other hand, the second assault itself involved kicking A in the face and knocking him down, acts capable of impairing ordinary physiological functioning. If at least a minor injury is found to have resulted, bodily injury for the second assault there may still be room to recognize this possibility.

How to Summarize the Answer

In answering this case, the first and second assaults must first be strictly distinguished.

For the first assault, A’s knife attack constituted an imminent and unlawful infringement, and Ko’s counterattack can be regarded as within the necessary and proportionate scope for preventing it; therefore establishment of self-defense should be discussed.

For the second assault, by contrast, A was fleeing and the infringement had ended, so the conduct should be treated as an unlawful retaliation rather than a defensive act. Because causation with the serious injury is uncertain, it is difficult to hold Ko liable for that serious result; instead, the second assault should be considered independently as potentially constituting assault or bodily injury. This is the appropriate way to summarize the issue.

Conclusion

Ko’s criminal liability in this case can be organized as follows.

First, first assault The first assault was an unavoidable response to A’s imminent and unlawful knife attack undertaken to defend Ko’s own body, and therefore self-defense is established 。

On the other hand, second assault The second assault occurred after A fled and the infringement had ended; Ko pursued and attacked A while still angry and excited. It therefore constitutes neither self-defense nor excessive defense, but rather an unlawful assault or act causing injury is.

However, because it is unclear whether A’s serious injury requiring one month for recovery was caused by the first or second assault, Ko cannot be held liable for that serious result. Accordingly, Ko may be liable for The first assault is not punishable. , only with respect to the second assault, the offense of assault or, depending on the degree of proof, bodily injury. can be concluded to result in criminal liability.