형법상 친족간 특례규정과 피해자의 의사

Abstract

In criminal act, there are some express provisions which have special legal effect in criminality and punishability of act by the reason of relationship among relatives. The provisions includes adultery, some kinds of crimes committed on lineal ascendant, killing or abandoning baby, special exceptions to relatives in harboring criminal, destruction of evidence and some property crimes. It is remarkable that the legal effect of some of those express provisions is related with the consent of victim. This paper tried to classify the express provisions based on the relationship among relatives and study correlation between the provisions and consent of victim and the possibility and appropriateness of the provisions. To point out the systematical problems and disharmony of legal effect of the provisions and suggest some of legal improvements is the purpose of this paper. When Property crimes committed among relatives, it is required to take consent of victim into consideration positively in a viewpoint that the law do not enter home. So it is not reasonable to give a legal effect to remit whole punishment because remittal of punishment does not reflect consent of victim. In this case, it is suggested that the crimes should be prosecuted only upon complaint or should not be prosecuted over the express objection of the victim, to take consent of victim into consideration. It would be an answer to the criticisms pointing out the problems like ignoring consent of victim and unbalance of criminal procedure.