According to a recent news report, a trial court in Korea (the Wonju Branch of the Chuncheon District Court) ruled that a young man in his 20’s, identified as Mr. Choi, should be imprisoned for 18 months in prison for causing a brain-death to a burglar in his 50’s, identified as Mr. Kim, in March of this year. This ruling has caused a stir in Korean society as many citizens, mostly non-lawyers, complained that the judge in this case has failed to recognize the home owners’ right to self-defense against a home intruder and that the punishment was too harsh.
     Mr. Choi has appealed his sentencing to a higher court, so we need to wait until there is a final decision by the highest court to figure out how this case may turn out. While going through the news articles, I had a chance to compare the Korean views on the right to self-defense and the Anglo-American views on the same right, and came to realize that Korea has not recognized the significance of a home in such cases. I am not saying that our legal system should recognize the so-called castle doctrine, but I think that it might be worthwhile for us to at least consider the doctrine for future cases where the defendants argue self-defense as a justification for their conduct.
     What happened in this case is as follows: On March 8, 2014, at or around 3:30 in the morning in the city of Wonju, Mr. Choi came back home after a night of socializing with his friends, only to find that there was a burglar at his home going through the household goods in the living room. It was readily apparent to Mr. Choi that Mr. Kim was a thief who was in the process of committing a crime there. The young man, Mr. Choi decided to resolve the situation on his own, and attempted to detain Mr. Kim by physical force. Mr. Choi demanded Mr. Kim to identify himself, and started punching Mr. Kim in the face. After Mr. Kim fell onto the floor and tried to escape, he again punched Mr. Kim in the back of his head several times. Then, Mr. Choi took a laundry drying rack made of aluminum, and struck Mr. Kim several time with the rack in his back, when Mr. Kim was trying escape from the scene. After this severe beating by Mr. Choi, Mr. Kim lost conscious, and was taken to the emergency room. It appears that Mr. Kim did not even attempt to fight back.
     The laws on self-defense appear to be very similar between the U.S.A. and Korea. In both jurisdictions, the defendant who claims to have acted in self-defense must show that: (1) he or she was facing an imminent threat of harm; (2) the defendant’s conduct in self-defense was proportionate to the perceived threat of violence; and (3) the defendant’s intent was to defend himself or others, not to attack the perpetrator. In both jurisdictions, it is relatively difficult for the defendants to be successful on this defense, as the defendant bears the burden of proof. In both jurisdictions, use of deadly force is prohibited and, thus self-defense claim fails when the defendant uses deadly force against the threat of non-deadly force. In Mr. Choi’s case, it appears that the trial court correctly applies the law, as Mr. Choi continued to exercise excessive forces upon Mr. Kim even after Mr. Kim was physically restrained by Mr. Choi. However, if this case were to be tried in the U.S.A., the result might have been different as the U.S.A. recognizes a special self-defense doctrine, the so-called castle doctrine in cases of home-intruders and burglars.
     The common law doctrine of the castle doctrine holds that one cannot be expected to retreat from one’s home, because “a man’s house is his castle, and one’s home is the safest refuge.” (Sir Edawrd Coke, The Institutes of the Laws of England, 1628). This concept can be also found in the Old Testament (a home defender who struck and killed a thief caught in the act of breaking in at night was not guilty of bloodshed – Exodus 22:1-3) and the Roman law. Under this doctrine, some states allow even the use of deadly force against home intruders or burglars. In addition, this doctrine also provides immunity from civil liability for the defendants. For example, New York penal Law section 35.15 states that “a person may use deadly physical force upon another person when and to the extent he reasonably believes such to be necessary to defend himself or a third person from what he reasonably believes to be … a kidnapping, forcible rape, forcible sodomy or robbery; or … a burglary …” In light of the foregoing, it is possible that Mr. Choi’s attack against Mr. Kim, who was a burglar trespassing into Mr. Choi’s home, might have been justified or excused in jurisdictions like New York that have incorporated this common law doctrine into their penal codes.
     Of course, this doctrine, while well known to the Western Civilization, is not free from criticism. One may argue that the right to use deadly force against individuals shall be vested solely in the government and that recognition of this doctrine will result in chaos and even more physical injuries. I do not believe that Korea should adopt this doctrine per se. However, there are some merits in arguing that a homeowner shall not be required to retreat from his or her own home when there is an intruder. Since this case is being appealed to a higher court, Korean courts now have a chance to consider whether they should give some breaks to the homeowners who use, sometimes excessively, physical force to defend their homes and their family members. This appeal deserves our attention.