The familial affection principle, which was established in 1953, is now a thing of the past. We can explore recent cases that highlight the issues with this principle in the article. What do Soongsilians think about the familial affection principle? ........ Ed
Let’s say you urgently need some money. You take some bills out of your parents’ wallet immediately. In this case, do you think you will be considered legally a thief and punished in this situation? The answer is that you will be safe from being punished. Recognizing the establishment of a property crime but not punishing crimes between family members is called the family crime exemption clause. It is Clause 1 and 2 under Article 328 of the Korean Criminal Act. According to the provision, property crimes between direct descendants, lineal descendants, spouses, and third cousins who live together are not punished. However, if the victim accuses the suspect, prosecution is possible. Intimacy in the family can, of course, give a certain degree of understanding and tolerance to crime. Therefore, the family crime exemption clause was enacted in 1953 to minimize the state’s intervention.
However, the provision that implemented for 71 years is to remain a part of history. On June 27th, the Constitutional Court decided that Clause 1 under Article 328 was inconsistent with the Constitution, while Clause 2 was considered consistent. As a result, the current regulations have been suspended, and, from now on, it is punishable to deprive family members of money. The Constitutional Court ruled that exempting punishment without considering the victim’s opinion or the extent of the damage violates the victim’s fundamental rights. Furthermore, family structures and cultural norms have changed significantly, making it challenging for the provision to persist. Since the clause was deemed inconsistent with the Constitution, it must be revised by December 2025.
Recently, there have been several cases in which issues with the provision have been exposed. The first case involves professional golfer Pak Se-ri’s father, who secretly forged the seal of her foundation, and used it for another financial project. Since the foundation is a NPO (Non Profit Organization), she reported her father to the police. The second case involves celebrity Park Soo-hong, who sued his brother for stealing about 6 billion won. However, his brother is not exempt from punishment because he doesn’t reside with Park. Their father claimed that he managed his son’s property to shield Park Soo-hong’s brother from punishment.
For the past 71 years, victims of property crimes have had their fundamental rights infringed upon simply because the suspects are their family members. However, the legal profession is now considering that cases that had been exempted from punishment will be brought to trial, and accusations within families will increase.
Kwon Da-hee (Web Editor)
kkkdiee@soongsil.ac.kr
