형법상 자초위난의 유형과 긴급피난의 성립여부

Patterns of Self-Incurred Emergency Evacuation and Its Permissibleness

The Criminal Law of Korea is not providing a clear provision for self-incurred emergency evacuation, so various opinions are arguing for its permissibleness. This paper will not only review the various opinions on this topic of German and Japanese academics and try to propose a resonable solution. Also, the current opinions of Korean cases and academics on this problem are reviewed. The opinions on this topic are divided into 3 categories which fully grant, fully denying, and partly grant the legality of self-incurred emergency evacuation. The German academic Koeper proposes a combined theory which try to solve this problem by combining the theory of interest-comparison and the theory of illegality in its cause. This theory is prima pacie right, but it is problematic, because the criterion to justify or to punish the actor is not clear. So, this paper support the ‘abuse of right’ theory and propose to divide the 3 categories of self-incurred emergency evacuation which are determined by the subjective element of the self-incurred emergency, that is the intentional emergency, the deliberate emergency, and the emergency by negligence. The theory of ‘abuse of right’ is now being applied to solve intentional self-defense situation, so it can be also applicable to self-incurred emergency evacuation. This theory is more excellent than the theory of interest-comparison theory or the purpose theory which consider the special characteristics of self-incurred emergency evacution that is different from the general emergency evacuation.