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緊急避難(Notstand)이란 현재의 위난에 처한 자가 위난과 관계없는 제3자에게 전가 내지는 회피하여, 이로 인하여 정당한 타인의 법익을 희생시켜 위난을 회피하는 것을 법이 일정한 한도(相當한 理由)에서 허용하는 법제도이다. 그런데 현재의 위난에 처한 자가 스스로 위난을 자초한 경우에도 긴급피난행위로 인정할 수 있는가가 문제가 된다. 이렇게 피난행위자가 스스로 피난을 초래한 경우인 이른바 ‘自招危難’은 일반적으로 위난발생에 책임이 있는 경우 이익비교에서 위난초래자에게 불이익하게 작용할 수는 있으나, 보호이익이 침해이익보다 현저하게 우월한 경우에 피난자의 행위가 정당화되는 데에는 영향이 없다고 본다. 따라서 자초위난에 대한 긴급피난은 일반적 규제요건으로서의 상당성의 견지에서 개개의 상황에 따라 구체적으로 판단하여야 할 것이다.


The Study on the emergency evacuation its by himself The Article 22 of Korean Criminal Law, the emergency evacuation(Notstand) is defined as follows; The crime is unpunished when it was acted on a reasonable reason to avoid any current danger for oneself and others. However, the details and the criteria “reasonable reason” is judged upon is not defined. Therefore the purpose is to propose a clear view on the “reasonable reason” by clarifying the fundamentals of emergency evacuation as it is defined in subsection 1 of section 22 of Korean Criminal Law. The situation has not been brought about by recklessly putting himself in a position where the emergency would arise. Test is up to the court, not the defendant, to make the determination of whether the harm sought to be avoided was indeed greater than that committed by the defendant's criminal act. There is also a requirement that the defendant have believed that he was making a choice of lesser of two evils, but the ultimate balancing of interests is done by the court. And I researched that discussing responsibility excuse theory, illegality theory, and divided theory on fundamentals of emergency evacuation, the legal characteristics of emergency evacuation of subsection 1 of section 22 of the Criminal Law have been investigated, and the basis why emergency evacuation by himself could be justified has been discussed. The illegality concept which “reasonable reason” functions upon has been clearly defined, and through discussion of practical illegality theory, on what terms reasonableness excuses illegality has been examined. The reasonableness as a part of justifiable emergency evacuation by himself formation has been discussed and with examples of these, the details of “reasonable reason by case by case” has been clarified.


The Study on the emergency evacuation its by himself The Article 22 of Korean Criminal Law, the emergency evacuation(Notstand) is defined as follows; The crime is unpunished when it was acted on a reasonable reason to avoid any current danger for oneself and others. However, the details and the criteria “reasonable reason” is judged upon is not defined. Therefore the purpose is to propose a clear view on the “reasonable reason” by clarifying the fundamentals of emergency evacuation as it is defined in subsection 1 of section 22 of Korean Criminal Law. The situation has not been brought about by recklessly putting himself in a position where the emergency would arise. Test is up to the court, not the defendant, to make the determination of whether the harm sought to be avoided was indeed greater than that committed by the defendant's criminal act. There is also a requirement that the defendant have believed that he was making a choice of lesser of two evils, but the ultimate balancing of interests is done by the court. And I researched that discussing responsibility excuse theory, illegality theory, and divided theory on fundamentals of emergency evacuation, the legal characteristics of emergency evacuation of subsection 1 of section 22 of the Criminal Law have been investigated, and the basis why emergency evacuation by himself could be justified has been discussed. The illegality concept which “reasonable reason” functions upon has been clearly defined, and through discussion of practical illegality theory, on what terms reasonableness excuses illegality has been examined. The reasonableness as a part of justifiable emergency evacuation by himself formation has been discussed and with examples of these, the details of “reasonable reason by case by case” has been clarified.