형법상 친족상도례 규정의 문제점과 바람직한 개정방향

Abstract

Article 328 (Crimes and Complaints among Relatives, or “Relative Remittal Clause”) provides that (1) when certain property-related crimes are committed against a lineal relative, a spouse, or a relative who lives together, of the offender, and their spouse, the punishment therefore shall be remitted, and (2) when certain property-related crimes are committed against relative other than those in the paragraph (1), the prosecution shall be instituted only upon a complaint. The Clause has played important role in determining the criminality and punishability of an act that was committed by an offender who is a victim’s relative. As a legal institution, the Clause shows that Criminal Law gives higher priority on the relationship among relatives by minimizing the exercise of judicial enforcement or correction measures on the property-related crimes among relatives. Although the Clause had been justified by the consideration of the possiblity of autonomous settlements among relatives in the past, the application of the Clause brings a variety of legal issues in the present. Most of the issues result from (1) broad scope of relatives including a spouse seeking a divorce, some of whom cannot be expected to make a settlement voluntarily, and (2) inconsistency among property-related crimes, as well as (3) weakened relationship among relatives due to rapidly increasing nuclear families or the rapid growing the one-person, or two-persons households. In order to minimize the harmful effect of the Cluase, it should be amended by reflecing the changed definition of relative as follows:(1) the scope of the relative for remittal should be curtailed to “lineal relatives, spouse, or relatives who live together, of the offender,”(2) all of the prosecution of relative-related crimes shall be instituted only upon a complaint; the remittal provision for closer relatives should be eliminated,(3) inconsistency in the application of the Clause among individual criminal provisions should be fixed. These methods may improve the criminal justice among relatives and secure the legal stability in community.