Self-Defense under Korean Law: Recent Key Judgments and Doctrinal Trends
The Big Picture
1. The Legal Basis of Self-Defense
Article 21 of the Criminal Act provides for self-defense as follows.
“An act performed to defend one’s own or another’s legal interest against a present unjust infringement is not punished where there is a reasonable ground.” (Criminal Act, Article 21(1))
Where the defensive act exceeds its proper degree, the punishment may be mitigated or remitted according to the circumstances (excessive defense, Criminal Act, Article 21(2)); and excessive defense arising from fear, fright, agitation, or confusion at night or in another anxious state is not punished (non-punishable excessive defense, Criminal Act, Article 21(3)).
2. The Requirements for Establishing Self-Defense — Established Principles
A. The core requirements
The Supreme Court has consistently held on the requirements for establishing self-defense as follows.
For an act to be recognized as self-defense, it must be to defend against a present unjust infringement of one’s own or another’s legal interest, and have appropriateness; so self-defense against a non-unlawful, legitimate infringement is not recognized. Whether the defensive act is socially appropriate must be judged by taking into account all the concrete circumstances—the kind and degree of the legal interest infringed by the infringing act, the method of the infringement, the urgency of the infringing act, and the kind and degree of the legal interest to be infringed by the defensive act. (Supreme Court, Mar. 15, 2017, 2013do2168; Supreme Court, May 7, 2021, 2020do15812)
B. Defense of another’s legal interest (emergency rescue) is also included
An act to defend against a present unjust infringement of not only one’s own but also another’s legal interest, where there is a reasonable ground, constitutes self-defense under Article 21 of the Criminal Act and unlawfulness is excluded (Supreme Court, Mar. 15, 2017, 2013do2168). This is sometimes called “emergency rescue” in particular.
C. The need for defensive intent (the subjective justifying element)
The precedents take the position (the necessity view) that for self-defense or excessive defense to be established, there must be defensive intent.
D. The scope of the defensive act — an active counterattack is also included
The defensive act as a requirement for establishing self-defense includes not only purely passive defense but also the form of counterattacking defense that includes an active counterattack (Seoul Central District Court, Aug. 23, 2024, 2023no3339; Seoul Central District Court, May 29, 2024, 2023no2341).
3. A Fight (Mutual Combat) and Self-Defense — the Most Frequent Issue
A. The principle: denial of self-defense during mutual combat
One of the most firmly established principles of our precedents is that where a person, while fighting with mutual intent to attack, is first attacked and inflicts harm in response, self-defense or excessive defense is not established.
Where it is appropriate to regard the assailant’s act as having come to inflict harm in response after being first attacked, while fighting with mutual intent to attack, rather than being to defend against the victim’s unjust attack, that act of inflicting harm has the character of both a defensive act and an attacking act, and so cannot be regarded as self-defense or an excessive-defense act. (Supreme Court, Mar. 28, 2000, 2000do228; Supreme Court, May 7, 2021, 2020do15812)
This principle has been consistently maintained since the 1960s–70s (Supreme Court, Apr. 30, 1971, 71do527; Daegu High Court, Sept. 8, 1971, 71no569; Supreme Court, Dec. 23, 1986, 86do1491), and is repeatedly confirmed in recent lower-court judgments as well (Changwon District Court, Nov. 26, 2024, 2023no2936; Gwangju District Court, Nov. 27, 2024, 2023no3620; Gwangju District Court, Dec. 5, 2024, 2024no520; Ulsan District Court, Feb. 15, 2024, 2023no433).
B. The exception: where self-defense is recognized even during a fight
That said, the precedents exceptionally recognize self-defense even during a fight in the following two cases.
(1) Where a weapon, etc. is used exceeding the degree naturally foreseeable in the combat.
Where, in a fight, the attack of one of the combatants comes to use a lethal weapon or the like exceeding the degree naturally foreseeable in that combat, this cannot but be called an “unjust infringement,” so self-defense against it must be permitted. (Supreme Court, May 7, 1968, 68do370)
(2) The case of passive defense against a one-sided attack. A passive defensive act to block or avoid a one-sided attack received from the victim, with no mutual intent to attack, may be recognized as self-defense. Recently there is a case in which an acquittal to this effect was rendered at the lower court and maintained on appeal (Daejeon District Court, Feb. 7, 2025, 2023no3068 — recognizing self-defense as a defensive act to block or avoid an assault in a situation where the defendant was being assaulted by C; the prosecutor’s appeal was dismissed).
Also, in Suwon District Court, Sept. 6, 2023, 2022no5494, as to the defendant’s act of pushing or hitting the victim’s facial area once—in a situation where the victim had done a hard-to-foresee act such as opening the door of the defendant’s car, entering, and forcibly pulling out the car key—the court recognized self-defense, finding that it was to block and defend against the victim’s unjust infringing act and that social appropriateness was recognized.
C. Provocation and self-defense
Where there was provocation, even if the provocation itself did not manifest as a direct unlawful attacking act, where the defending actor bears a certain part of the responsibility for creating the defensive situation, he must first avoid the situation, and self-defense is permitted only in a situation where avoidance is impossible (Jeju District Court, Oct. 11, 2023, 2023gojeong50).
D. A subsequent retaliatory act — both self-defense and excessive defense denied
An act of going to the other party several hours after a fight and abruptly stabbing him in the heart with a knife is, not a defensive act, but a new attacking act, and constitutes neither self-defense nor excessive defense (Seoul High Court, Mar. 20, 1987, 87no94).
4. Cases Recognizing Self-Defense Against Infringement of Property or Property Rights
Self-defense may be established not only against infringement of the body but also against infringement of property rights. In Seoul Central District Court, May 29, 2024, 2023no2341, because service workers were abruptly trying to knock down a fence and so were committing an unjust infringement of the ownership of the fence, the court maintained the lower court’s acquittal, finding that the defendants’ act of blocking this constituted self-defense.
5. Excessive Defense and Non-Punishable Excessive Defense
A. Excessive defense (Criminal Act, Article 21(2))
Excessive defense means a case in which the other requirements of self-defense are met but the defensive act departs from the degree of appropriateness. For excessive defense to be established, all the requirements of self-defense other than a reasonable ground (a present unjust infringement, defensive intent, etc.) must be met. A defensive act against a past infringement or a legitimate infringement, or an act without defensive intent, can be neither self-defense nor excessive defense.
B. Non-punishable excessive defense (Criminal Act, Article 21(3))
Where excessive defense was committed owing to fear, fright, agitation, or confusion at night or in another anxious state, it is not punished. In Suwon District Court, May 30, 2025, 2024no3700, the court—while finding that the defendant’s act constituted self-defense—judged that even if it did not constitute self-defense for lack of appropriateness, since the defendant proceeded to the act out of fear of further assault in a state of physical and mental shock from the victim’s assault, it constituted non-punishable excessive defense, and acquitted.
6. The Overall Trend of the Precedents — What Has Changed
A. The continuity of the basic principles
The core requirements of self-defense (a present unjust infringement, defensive intent, appropriateness) and the principle denying self-defense during a fight have been consistently maintained for decades, so it is difficult to regard there as having been a fundamental change in the basic principles themselves.
B. Changing trends
That said, academia points out that the following trends of change are observed.
| Area | Content of the change |
|---|---|
| Resistance to unlawful exercise of public power | A trend of recognizing self-defense for a citizen’s resistance to a police officer’s unlawful performance of duties |
| Protection of the socially vulnerable | A trend of actively considering the self-defense perspective for the counter-acts of the socially vulnerable, such as victims of continuous domestic violence |
| Everyday fights | Still rather stingy in recognizing self-defense |
C. Practical points
It is also an established principle that the court must expressly rule on a self-defense argument. A lower-court judgment that, despite the defendant having argued self-defense, did not rule on it has the defect of omission of judgment (Supreme Court, Dec. 9, 1969, 69do1828; Supreme Court, Dec. 29, 1967, 67do1458). That said, where the defendant withdrew the self-defense argument, not ruling on it is not unlawful (Seoul Central District Court, June 14, 2021, 2021no633).
7. Summary
| Category | Content |
|---|---|
| Establishment of self-defense | A present unjust infringement + defensive intent + appropriateness |
| Principle during a fight | Both self-defense and excessive defense denied |
| Exception during a fight | Use of a weapon exceeding what is foreseeable; passive defense against a one-sided attack |
| Excessive defense | Mitigation or remission of punishment possible where appropriateness is lacking |
| Non-punishable excessive defense | Excessive defense from fear, fright, agitation, or confusion at night or in an anxious state |
The basic principles of self-defense have been consistently maintained for decades, but because the judgment of “appropriateness” in a concrete case varies according to the individual circumstances, a precise analysis of the facts is important. In a fight case in particular, whether there was a “mutual intent to attack” becomes the key issue.
The Shift in the “Appropriateness” Standard for Self-Defense, and Recent Trends
1. The Basic Principle of the Appropriateness Judgment — the Starting Point
Article 21(1) of the Criminal Act provides that “an act performed to defend one’s own or another’s legal interest against a present unjust infringement is not punished where there is a reasonable ground” (Criminal Act, Article 21(1)).
The Supreme Court has consistently held on the standard for judging appropriateness as follows.
Whether a defensive act is socially appropriate must be judged by taking into account all the concrete circumstances—the kind and degree of the legal interest infringed by the infringing act, the method of the infringement, the urgency of the infringing act, and the kind and degree of the legal interest to be infringed by the defensive act. (Supreme Court, Nov. 13, 2003, 2003do3606; Supreme Court, Mar. 15, 2017, 2013do2168; Supreme Court, Apr. 27, 2023, 2020do6874)
This basic formula itself has not changed for decades. However, a notable change is observed in the manner of applying this formula to concrete cases.
2. The Structural Features of the Appropriateness Judgment — the Tension Between Scholarship and Precedent
A. The status of subsidiarity and balance of legal interests
Academia raises, as elements of the appropriateness judgment: (1) the necessity of the defensive act; (2) subsidiarity; and (3) the balance of legal interests. The precedents, however, do not require these three as independent and essential requirements, but go no further than passively taking them into account as part of all the concrete circumstances.
In particular, because self-defense is a relationship of “wrong versus right,” the majority position in scholarship is that subsidiarity is in principle not required and that the principle of the balance of legal interests is not strictly applied either. In this respect, the precedents’ tendency to place weight on the minimum necessity in the appropriateness review is consistent.
B. The relationship between appropriateness and excessive defense
The precedents take the position that if a defensive act fails to have appropriateness, self-defense itself is not established, and so there is no need to examine excessive defense either. As against this, there is also a view in academia interpreting it as “there being unlawfulness because self-defense is not recognized, but, depending on the degree of culpability, becoming a ground for discretionary mitigation or remission, or a ground for non-punishment”; and there is criticism that the attitude of the precedents should be reexamined.
3. Key Changes in the Appropriateness Judgment Since the 2010s
A. The expansion of the concept of “the present nature of the infringement” — the most important change
A 2023 Supreme Court judgment expressly expanded the concept of “the present nature of the infringement,” which is directly connected to the appropriateness judgment.
“The present nature of the infringement” is determined not by whether the infringing act has formally reached completion, but means the period until the infringement situation against one’s own or another’s legal interest ends; so where, owing to a series of continuous acts, the infringement situation does not cease, or even if it ceases temporarily there is an objective ground that a further infringement will arise immediately, even if some of those acts have reached the completion of an offense, the infringement situation can be regarded as not having ended as a whole. (Supreme Court, Apr. 27, 2023, 2020do6874)
This principle was immediately accepted in lower courts and is operating in the direction of broadening the scope of recognizing self-defense (Suwon District Court, May 22, 2024, 2023gojeong932; Daegu District Court, Andong Branch, Oct. 15, 2024, 2024gojeong41).
B. The express permission of “counterattacking defense” — an active counterattack can also have appropriateness recognized
Formerly, the precedents had a strong tendency to recognize appropriateness only for a passive defensive act. Recent precedent, however, expressly permits counterattacking defense, as follows.
The defensive act as a requirement for establishing self-defense includes not only purely passive defense but also the form of counterattacking defense that includes an active counterattack. (Supreme Court, Apr. 27, 2023, 2020do6874)
This principle is widely cited in lower-court judgments of the 2020s (Suwon District Court, Feb. 7, 2024, 2022no1635; Ulsan District Court, Aug. 11, 2023, 2020no412; Busan District Court, Dongbu Branch, Mar. 14, 2025, 2024gojeong530).
That said, the fact that counterattacking defense is permitted does not mean the appropriateness requirement has been relaxed. Even where the form of counterattacking defense is taken, the court strictly examines whether it was for defense or was based on an intent to attack.
C. Comparison of concrete cases — appropriateness recognized vs. denied
The table below compares cases in recent judgments where appropriateness was recognized and where it was denied.
| Category | Case | Conclusion | Key reason |
|---|---|---|---|
| Recognized | When the victim ran at him with fists raised, knocking him to the ground and pinning him with both knees, releasing immediately after the police arrived | Self-defense, acquittal | Reported without further assault after pinning; the minimum necessary means (Suwon District Court, May 22, 2024, 2023gojeong932) |
| Recognized | Embracing and knocking to the ground a victim who was threatening with a hammer | Self-defense, acquittal | Even if the hammer had been set down, the possibility of further infringement existed; the present nature of the infringement recognized (Daegu District Court, Andong Branch, Oct. 15, 2024, 2024gojeong41) |
| Recognized | At an injunction-enforcement scene, when the victim assaulted first, grabbing his collar and pushing him over | Self-defense, acquittal | Resistance to the victim’s preemptive violence; the degree of physical force was at a socially appropriate level (Suwon District Court, Pyeongtaek Branch, Jan. 14, 2022, 2021gojeong48) |
| Denied | When grabbed by the collar by the victim, headbutting the face several times, causing a tooth-subluxation injury | Guilty | Inflicting an injury in a situation of being assaulted is yet another attacking act (Daegu District Court, Pohang Branch, Mar. 20, 2024, 2024gojeong10) |
| Denied | After being assaulted first by the victim, choking him or wrapping his waist and knocking him to the ground | Guilty | Cannot be regarded as an appropriate act to defend oneself (Jeonju District Court, Gunsan Branch, Feb. 13, 2025, 2024gojeong433) |
| Denied | When the victim approached cursing, grabbing his neck and pushing him | Guilty | The victim had not yet exercised physical force; the defensive act lacked appropriateness (Chuncheon District Court, June 17, 2025, 2024gojeong351) |
D. Self-defense against unlawful exercise of public power — a strengthening trend of recognition
Supreme Court, Mar. 15, 2017, 2013do2168 held that where a police officer tried to take in a flagrant offender by force without observing due process, this is not a lawful execution of official duties, so an act of resistance to it may constitute self-defense. This is an important judgment showing the trend of recognizing self-defense for a citizen’s resistance to an unlawful exercise of public power (Supreme Court, Mar. 15, 2017, 2013do2168).
4. Areas Where the Appropriateness Judgment Is Still Strict
A. A fight (mutual combat) situation
Where a person, while fighting with mutual intent to attack, is first attacked and responds, appropriateness is still denied (Supreme Court, Mar. 28, 2000, 2000do228). This principle is consistently maintained in recent lower courts as well (Busan District Court, Dongbu Branch, Jan. 7, 2025, 2024gojeong465; Jeonju District Court, Namwon Branch, July 12, 2022, 2022godan31).
B. Where the defensive act clearly exceeds the limit of passive defense
Where one continues to attack even after suppressing the victim’s attack, or inflicts a further attack in a state where the threat has already been removed, appropriateness is denied (Seoul High Court, July 6, 1984, 84no1304 — a case of stabbing the victim, who held nothing after his knife had been taken, several times).
C. An act based on an intent to attack, without defensive intent
The court strictly examines whether the defendant’s act was based on defensive intent or on an intent to attack. Where defensive intent is not recognized, or where it clearly exceeds the appropriateness of a defensive act, not even excessive defense is established (Seoul Eastern District Court, Oct. 24, 2024, 2024no97).
5. Overall Assessment — the Direction of the Change and Its Limits
A. The direction of the change
| Area | Content of the change | Direction |
|---|---|---|
| The present nature of the infringement | Judged by whether the infringement situation has ended, not by whether completion was reached | Relaxed |
| Counterattacking defense | An active counterattack can also have appropriateness recognized | Relaxed |
| Unlawful exercise of public power | Self-defense recognized for resistance to an unlawful execution of duties | Relaxed |
| A fight situation | Still denied where there is mutual intent to attack | Maintained |
| Further attack after defense | Denied where one continues to attack after the threat is removed | Maintained |
B. Limits and practical implications
The basic formula of the appropriateness judgment has not changed, but the expansion of the concept of “the present nature of the infringement” and the express permission of “counterattacking defense” are operating in the direction of substantively broadening the possibility of recognizing self-defense. The court, however, still strictly examines the minimum necessity of the defensive act in the concrete facts, so it is difficult to conclude that the appropriateness judgment has become generally lenient.
In practice, the key issues in the appropriateness judgment are: (1) whether the defendant had an intent to attack first; (2) whether the defensive act was the minimum means necessary to suppress the infringement; and (3) whether one continued to attack even after the infringement ended.
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