친족상도례의 문제점과 개선방안

• 영문명: The Problems and Improvement Devices of the Special Exception to Relatives
• 발행기관: 한국형사정책학회
• 저자명: 김태수(Kim, Tae-Soo)
• 간행물 정보: 『형사정책』刑事政策 第26卷 第1號, 219~240쪽, 전체 21쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2014.04.30

영문 초록

Article 328, the regulation of Special Exception to Relatives in the property crimes of the current Korean Criminal Law consists of Article 328 (1) and (2), each of them applied to close and distant relatives and differentiates its subjects and legal consequences. The close relative who is applied by Article 328 (1) is exempted from the sentences resulting from a certain level of property crimes and for the other relatives Article 328 (2) is applied and the lawsuit is necessary for prosecution. However, this regulation has several problems as follows: First, though the current regulation distinguishes close relatives from distant relatives and favors the close relatives, there may be consequences opposite to the intention of this regulation. Second, even though brothers and sisters are close relatives as a family member regardless of their cohabitation, they are classified as distant relatives for the sole reason they do not cohabit, which does not agree to the idea of family or legal consciousness in Korea. It is not understandable to classify brothers and sisters as distant relatives due to the reasons why they do not cohabit in the era of nuclear families and why the cohabitation cannot be seen as a reasonable discrimination. Third, the current regulation has flaws in that the close relative applied by Article 328 (1) cannot be punished for the malicious crimes he or she committed although the victim demands the punishment. Even for the problems mentioned above, it seems that there is no need in classifying the regulation into Article 328 (1) and (2) under the current law. It has very likely to violate the principle of equality in Constitution, for not only it is difficult to find a reasonable basis to justify discrimination, but also it lacks of equity due to its contradictive consequences and loss of equilibrium. Furthermore, even though there may be a necessity of punishment and demand of punishment by the victim to the crime highly maliciously even after considering it is committed by close relatives, applied by Article 328 (1), the act of not punishing the crime faces with the criticism of abandoning the duty as a country and forfeiting the just exercise of right to punish. Therefore, it will be the way to be closer to protection of the victim’s right and realization of legal justice to open the option of criminal punishment to the close relatives. It is considered that abolishing the current regulation that distinguishes close relatives from distant relatives and has different consequences for each and revising it into the crime subject to victim’s complaint are the just way to correspond to a changing society and to eliminate the problems and the unconstitutionality of the current regulation.

목차

Ⅰ. 머리말

Ⅱ. 문제점

Ⅲ. 해결방안

Ⅳ. 맺음말

참고문헌

Abstract

키워드

친족상도례 먼 친족 고소 친고죄 소추조건 Special Exception to Relatives a distan relative Accusation Crime attaching to victim's charge Conditions for Prosecution