친족관계의 변화와 형법상 효과 - 친양자제도 도입에 따른 문제를 중심으로 -

Abstract

Relative Relationships is important in criminal law because they can be a crime-constituting condition or a condition aggravating or exempting criminal penalties for some crimes. Therefore, it is very important in the application of criminal law whether there exist familial relationships between a criminal and a victim. These changes in civil law attract attention on whether such changes will affect the application of criminal law. Although relative relationships are also important in criminal law, criminal law itself does not have provisions regulating the establishment, change, and termination of relative relationships. Thus, the civil law changes will inevitably affect the application of criminal law because the revised civil law provisions will apply to criminal law cases. It would therefore be necessary to consider how far the civil law changes should apply to criminal law cases. To illustrate this further, in order to punish a criminal's immorality, criminal law aggravates criminal penalties for a certain crime if it is committed by a person against his lineal ascendant. On the other hand, however, for some cases where crimes have been committed against relatives, criminal law exempts from criminal penalties or sets them as crimes indictable upon a complaint in order not to intervene in domestic matters. Consequently, the issue whether a full-adopted child has committed a crime against his birth parents should get aggravated penalties for his immorality. Because a lineal ascendant is legal conception and familial relationships are terminated under the full adoption system, aggravated penalties are not applicable to such case. Also, under the current criminal law, the provisions on larceny committed against one’s relatives will not apply to a case in which a full-adopted child commits larceny against his birth parents because the law borrows the civil law definition of relatives and there no longer exist familial relationships between the criminal and victim under civil law. Therefore, the larceny committed by a full-adopted child in that case may not be exempt from criminal penalties or be entitled to a crime indictable upon a complaint.