친족상도례 규정상 친족에 관한 몇 가지 문제에 대한 고찰

Abstract

Article 328 of Korean Criminal Law provides for the exceptional rule of crimes and complaints among relatives to property offences. But it does not specify whether the judgment on the type of relatives subject to the exceptional rule of crimes and complaints among relatives to property offences is based on the criminal standard or the victim standard. It also does not explicitly stipulate how to apply the exceptional rule of crimes and complaints among relatives to property offences if only some of the victims are relatives in relation to the criminal and the rest of the victims are not relatives in relation to the criminal. In addition, it does not specify whether to be exempted from punishment under Article 328 (1) or to be a crime subject to victim’s complaint under Article 328 (2) if the types of relatives between the criminal and the several victims are different. From these facts, some controversial issues arise in interpretation about relatives in the exceptional rule of crimes and complaints among relatives to property offences, and this study seeks to find answers to these problems. The conclusion of this study is as follows. First, it should be interpreted that Article 328 (1) applies if the judgment on the type of relatives subject to the exceptional rule of crimes and complaints among relatives to property offences may vary depending on whether you judge based on the criminal or the victim. Second, it should be interpreted that in a single crime, if only a part of the several victims are relatives in relation to the criminal, the exceptional rule of crimes and complaints among relatives to property offences does not apply. Finally, in a single crime, if the relationship with some of the criminal's several victims falls under Article 328 (1), and the relationship with the remaining victims falls under Article 328 (2), it should be interpreted as a crime subject to victim’s complaint under Article 328 (2).