IECL Lunchtime Seminar - "Putative Defence: A Comparative Study"

Professor Seong Jo Ahn

Let’s think about this case: A hits B to death in the mistaken belief that B was about to attack A. We call it a case of putative defence in criminal law. So what is the best legal option to treat A? Punishment? Acquittal? Or any other ways? Yes. There are all the ways of treating him/her as such. For example, New York Court of Appeals in People v Young followed the first option upholding the defendant’s conviction. The rationale is that allowing a defence would not be conducive to an orderly society even if the mistake is reasonable one. By contrast to this case, the Court of Appeal in R v Williams held that where a defendant acts in self defence under the genuine but mistaken belief that he is being attacked, he is entitled to an acquittal, even if his mistake is an unreasonable one(i.e. subjective test rule) and this is the current position of English rule. Naturally, the question why and how the defendant is entitled to an acquittal even if the mistake is unreasonable could be posed given that other common law jurisdictions like Scots law take the approach that only a reasonable mistake about the existence of an attack should be permitted to ground an acquittal(i.e. objective test rule). And how about U.S. or German way or that of other European countries to treat a case of putative defence?

In Korea, according to the rule established by the Supreme Court, a putative defense can be a self defence only if the mistake is based on reasonable grounds which means reasonable mistake in putative defence negates the unlawfulness(Rechtswidrigkeit) of the act. However, in contrast to the rule, the predominant view of criminal law academics prefers the way of excluding the intent(Vorsatz) or guilt(Schuld) of the defendant who acts in mistaken self defence to the rule of Supreme Court on the ground of systematic and structured criminal law dogmatics that is widely recognized in both Korean and German criminal law. Interestingly, in Korea a lower court recently tried to advocate and support the rule of Korean Supreme Court arguing that the Korean and German criminal law doctrines that deal with putative defence are not only logically but also dogmatically unsatisfactory, so the Court had to decide the related cases from an independent view that a putative defence can be a self defence only if the mistake is reasonable. If so, the rule of Korean Supreme Court seems to closely resemble the objective test rule adopted by many common law jurisdictions. Is this right interpretation on the putative defence rule between them? If not, what is the core difference between the rule of Korean Court and that of the common law jurisdictions. Let’s think and talk about what is the best legal option together.