형법상 친족상도례의 개선방안에 관한 연구 = A Study on Improvement of Special Exception to Relatives in Criminal Law

다국어 초록 (Multilingual Abstract)

In Criminal law, there are some provisions which have special legal effect in criminality and punishability of act by the reason of relationship among relatives. Therefore, it is important in the application of Criminal law whether there exist familial relationships between a crime and a victim. Criminal law Article 328, Special Consideration on Crime among Relatives is a legal system that gives higher priority on the relationship among relatives by minimizing the exercise of state`s punishment right on the property-related crimes among relatives. In Criminal law, the scope of relative abides by the rules of the Civil law. Although the conception of relative relationships are very important, Criminal law itself does not have provisions regulating the scope, establishment, change and termination of relative relationships. Thus revising the civil law inevitably affects the application of Criminal law. it would appear reasonable that the Criminal law itself enacts relative relationships provision From the point of view of the originality of Criminal law. And the limited application of Special Consideration on Crime among Relatives is required in the view of necessity of reflecting the changed definition of relative in the reality in view of weakened relationship among relatives due to rapidly increasing trend of nuclear families or the rapid growth of the one-person households. Also, the destruction and damage of property shall be enacted in order to apply to special exception to relatives as another`s property crime to balance equity and fairness with other property crimes. With this, Extortion and attempted extortion except robbery shall be excluded from application of the special exception to relatives. In order to solve these problems, the following methods can be present. In Conclusion, the problems and Ways of Improving of this exceptional case is required to secure the legal justice and law order in community. ※ Criminal Act Article 328(Crimes and Complaints among Relatives) ① When the crime of Article 323 is committed against lineal blood relatives of the offender, the spouse, relatives living together, family members living together or their spouses, punishment therefor shall beremitted ② When the crime of Article 323 is committed against relatives other than those in paragraph ①, the prosecution shall be instituted only upon complaint. ③ The preceding paragraph shall not apply to an accomplice who is not a relative within the meaning of the preceding two paragraphs. Criminal Act Article 344(Crimes Among Relatives) The provisions of Article 328 shall apply mutatis mutandis to the crimes of Articles 329 through 332 and attempts thereof. Article 151(Harboring Criminal and Special Exceptions to Relatives) ② If the crime of the preceding paragraph is committed by a relative or a family member living together with the said person for the benefit of the criminal, it shall not be punishable.