친족상도례 규정의 개정방향 - 친족구분의 문제와 법적 효과를 중심으로 -

Korean Criminal Law has the exceptional rule of crimes and complaints among relatives to property offences. Article 328 of Korean Criminal Law provides that (1) when the crime of obstructing another from exercising one’s right is committed against lineal blood relatives of the offender, the spouse, relatives living together, family members living together or their spouses, punishment therefor shall be remitted, (2) when the crime of obstructing another from exercising one’s right is committed against relatives other than those in paragraph (1), the prosecution shall be instituted only upon complaint, and (3) the preceding paragraph shall not apply to an accomplice who is not a relative within the meaning of the preceding two paragraphs. And the provisions of Article 328 shall apply mutatis mutandis to the crimes of larceny, fraud, extortion, embezzlement, breach of trust, and acquiring stolen property, aiding, etc. This paper attempts to examine the validity of relatives division and legal effects which the exceptional rule provides, and seeks ways to improve it. The result of this review may be summarized as follows. The exceptional rule should be amended to the ways that it does not divide the relatives as subject of application and has the legal effects of the crimes subject to the clearly expressed intention of victim.