Series Index
Part 1 | Unpaid Corporate Transactions: Liability Behind the Veil
Part 2 | Trade Name Continuity and the Liability of a Successor
Part 3 | Directors’ Liability for Damages
Part 4 | The Person Behind the Company Name
Part 5 | The Limits of Self-Defense in Assault Cases
By Hong Seung-kwon
Principal Attorney, PAN Law Firm (skh@law-pan.com)
What should you do if someone suddenly strikes the back of your head on the street and throws a punch at you? What if you instinctively hit back? Or if someone grabs your hair and refuses to let go, and you respond by grabbing theirs in return?
Even when the other party clearly initiated the confrontation and you merely reacted, you may still legally become an offender yourself. This is commonly referred to in Korea as “mutual assault.” Why does this happen?
Under criminal law, assault refers to the exercise of “physical force” against another person’s body. The scope of such force is broader than many people assume. It includes grabbing someone by the collar, pulling clothing, pushing another person, and even aggressively shouting near someone’s ear or making threatening gestures at close range.
As a result, when someone provokes or physically threatens you, any form of physical response may legally place you in the position of an assailant as well. Many people believe that self-defense will automatically protect them in such situations. In practice, however, courts recognize self-defense far less frequently than the public tends to expect.
In physical altercations, offensive and defensive actions often become intertwined, making it difficult to distinguish attack from defense. Consequently, regardless of who struck first, if both parties exchanged physical force during a confrontation, courts frequently conclude that assault occurred on both sides rather than recognizing one party’s claim of self-defense.
That does not mean self-defense is impossible in every fight. Even when a situation outwardly appears to involve mutual combat, self-defense may still be recognized if one party was engaged in a unilateral unlawful attack and the other used force solely as a means of protection or escape.
The difficult question, then, is how much force qualifies as reasonable resistance for self-protection. Ultimately, that determination depends on the specific circumstances of each case.
During police investigations, several factors are typically considered when evaluating claims of self-defense. First, the act must genuinely have been intended to prevent or repel unlawful harm, and the individual claiming self-defense must not have initiated the violence or provocation. Second, the level of force used must not substantially exceed the level of the original threat, and dangerous weapons or objects must not have been involved. Third, force must not continue after the threat has ended. Investigators also consider whether the injuries inflicted on the other party were disproportionate to the injuries suffered by the defendant, particularly where serious bodily harm requiring more than three weeks of medical treatment occurred.
When force exceeds the legally acceptable scope of self-defense, it may constitute what is known as excessive self-defense. Consider the following example: an intoxicated individual verbally abuses someone and swings a punch. In response, the other person forcefully shoves the intoxicated attacker in the chest to avoid the assault. The attacker falls backward, strikes his head on the ground and suffers injuries requiring approximately eight weeks of medical treatment. Because less forceful alternatives — such as restraining the person’s arms or lightly pushing them away — may have been sufficient, the court may determine that the response exceeded reasonable defensive force. In such cases, self-defense is denied and excessive self-defense is recognized instead. Although excessive self-defense may lead to reduced punishment, it does not erase criminal liability altogether.
When unexpectedly assaulted, remaining completely passive is rarely easy. Running away is often the safest option, but circumstances may make escape difficult, especially if one is physically restrained. The problem is that actions taken merely to avoid harm can later appear, particularly on CCTV footage, as though both parties were actively fighting each other. In those situations, proving lawful self-defense becomes significantly more difficult.
In some cases, it may be strategically preferable to file a civil lawsuit first and seek damages. Although compensation may be reduced in proportion to one’s own degree of fault, civil proceedings generally avoid the risk of criminal punishment and may therefore impose a lighter burden overall.
If the other party files a criminal complaint — whether initially or in response to your own complaint — it is important either to pursue a settlement or to seek professional legal assistance in asserting a self-defense claim. Even where self-defense is ultimately rejected, individuals who played only a passive or limited role in the altercation are more likely to receive relatively minor fines. Nevertheless, even a small fine remains a criminal conviction under the law.
About the Author
Hong Seung-kwon is the managing attorney of Pan Law Office. His practice covers a broad range of issues, including civil and criminal litigation as well as emerging legal challenges in the digital era. He has continued to analyze how technological innovation, property rights, and regulatory policy changes affect legal and market structures.
