Justifiable Act
Overview
Justifiable act is a ground for excluding illegality prescribed in Article 20 of the Criminal Act, referring to "an act performed in accordance with a statute or in the course of an occupation, or any other act that does not violate social norms." Even if an act formally satisfies the elements of a crime, it is recognized as not substantially unlawful, thereby negating the establishment of a crime. A justifiable act means conduct that can be tolerated in light of the overall spirit of the legal order and social common notions, and is based on the principle of subsidiarity of criminal law and the liberal democratic basic order.
Main Content
Legal Basis and System
Article 20 of the Criminal Act of the Republic of Korea provides: "An act performed in accordance with a statute or in the course of an occupation, or any other act that does not violate social norms, shall not be punished." This is a general and comprehensive ground for excluding illegality among such grounds. Unlike specific grounds for excluding illegality such as self-defense (Article 21), necessity (Article 22), self-help (Article 23), and consent of the victim (Article 24), a justifiable act presents the abstract standards of statutes, occupation, and social norms. Accordingly, a justifiable act is supplementarily applied in various situations not covered by individual grounds for exclusion, or is judged in competition with other grounds.
Acts Performed in Accordance with a Statute
An act performed in accordance with a statute means an act carried out on the basis of written law such as statutes, decrees, ordinances, and rules. This includes arrest, seizure, and search under a warrant pursuant to the Criminal Procedure Act, administrative vicarious execution under the Administrative Vicarious Execution Act, and use of dangerous police equipment under the Police Officers' Execution of Duties Act. For an act based on a statute to be justified, both substantive and procedural legal requirements must be satisfied. For example, in the case of arrest, there must be reasonable grounds for suspicion of a crime as a substantive requirement, and a warrant must be lawfully issued as a procedural requirement. Even if formal statutory requirements are met, an act that is substantially abused is not recognized as a justifiable act.
Acts Performed in the Course of an Occupation
An act performed in the course of an occupation means conduct that inevitably occurs in carrying out a socially recognized occupation, even if not based on a statute. Representative examples include a doctor's surgical procedure, foul play during a sports game, a lawyer's advocacy, a reporter's news-gathering, and a firefighter's suppression activities. For an occupational act to be justified, the occupation itself must be socially approved, and the means or methods of performing the occupation must be reasonable. For example, a doctor's incision to save a patient's life is recognized as a justifiable occupational act, but if an excessive operation is performed without the patient's consent, illegality may not be excluded. In addition, in sports games, foul play within the ordinary scope of the game is recognized as a justifiable act, but intentional violence that causes serious harm to an opponent cannot be regarded as a justifiable act.
Acts That Do Not Violate Social Norms
An act that does not violate social norms refers, apart from acts based on statutes or occupations, to conduct that can be tolerated in light of general common sense and sound social notions. This is an abstract and normative concept whose meaning is determined through a judge's interpretation and judgment in specific cases. The Supreme Court has defined social norms in relevant precedents as "conduct that the legal order may tolerate when viewed from the overall standpoint of the social order." Representative examples include destroying another person's property at a fire scene to extinguish the fire, driving another person's vehicle in an urgent situation to transport a patient, and subduing an assailant to protect a person exposed to violence. However, the determination of social norms should be made carefully by comprehensively considering the circumstances at the time, the motive and purpose of the act, the means and method, the degree of infringement of legal interests, and the balance between the protected interest and the infringed interest.
Limits of Justifiable Acts and Standards for Determination
Several standards for determining whether a justifiable act excludes illegality have been suggested. First, the motive and purpose of the act must be legitimate. In other words, if the actor has a motive or purpose that departs from social reasonableness, the act is not recognized as justifiable. Second, the means and method of the act must be reasonable. The act should be performed in a way that minimizes infringement of legal interests; if excessive means are used even though less intrusive means were available, the act goes beyond the scope of a justifiable act. Third, there must be a balance of legal interests. Even if the protected interest is less than or equal to the infringed interest, there may be cases permitted in light of social norms, but in general, a justifiable act is not recognized when the infringed interest is significantly greater than the protected interest. Fourth, there must be urgency or necessity. Only when immediate response is required in an urgent situation can the act be recognized as justifiable. These standards apply equally to acts based on statutes and acts performed in the course of an occupation.
Related Precedents and Theories
Supreme Court precedents emphasize the "reasonableness of the act" in recognizing a justifiable act. For example, in Supreme Court Decision 2002Do5577 decided April 22, 2003, the Court held that in determining whether a labor union's act of dispute fell under an act not violating social norms, the purpose, means and methods of the dispute, and the violence and destruction that occurred in the process should be comprehensively considered. In addition, in Supreme Court Decision 2012Do10455 decided July 11, 2013, the Court held that the concept of social norms should be viewed as a fluid and historical concept in determining whether the gender correction of a transgender person who had undergone gender reassignment surgery constituted a justifiable act. In academic theories, there are conflicting views on the nature of a justifiable act, including a theory based on the spirit of the entire legal order, the theory of social reasonableness, and the purposive theory of action. The majority view and precedents adopt the theory of social reasonableness, which requires that the act be tolerable in light of the ordinary order of social life.
Recent Trends
From 2024 to 2025, discussions on justifiable acts have been active mainly in the areas of new types of crime and advanced technology. First, there is an ongoing debate over whether investigative agencies' evidence collection activities in responding to digital sex crimes can be recognized as justifiable acts. In particular, lower court decisions are divided on whether briefly taking another person's mobile phone to delete illegal spy camera footage constitutes a justifiable act, and the Supreme Court's ruling is drawing attention. Second, new discussions are emerging on how automated acts using artificial intelligence (AI) technology affect the standards for determining social norms. For example, whether the doctrine of justifiable acts can be applied in a situation where an autonomous vehicle inevitably harms a pedestrian to avoid an accident is being examined in academia and practice. Third, precedents are accumulating on whether citizens' nonviolent direct actions in response to climate change (e.g., environmental groups' protests, sit-ins at workplaces) do not violate social norms. In 2024, courts did not recognize some environmental activists' actions as justifiable acts, but behind that, there is public opinion that the scope of social norms should be expanded. In addition, in 2025, a precedent is expected on whether distributing another person's illegal footage for the purpose of protecting personal information can be exempted as a justifiable act, and legal review on this issue is underway.
Related Topics
- [[위법성 조각 사유]]
- [[정당방위]]
- [[긴급피난]]
- [[자구행위]]
- [[사회상규]]