노인 대상 친족의 경제적 착취범죄에 대한 친족상도례 적용의 타당성에 관한 연구

Our society has already entered an era characterized by a significant increase in the elderly population. The number of households with individuals aged 65 or older is consistently rising. Concurrently, crimes of economic exploitation targeting the elderly are on the rise. These crimes, already recognized as a social problem in developed countries, result in financial devastation and inflict irreparable harm on the lives of older individuals. Economic exploitation crimes are primarily perpetrated by close relatives, such as children, and often occur without a sense of guilt, driven by an incorrect perception of entitlement to the parents' property. To ensure a basic quality of life for the elderly in a society experiencing significant aging, there must be an anticipation of a broad preventive impact. This can be achieved by allowing active intervention from the state's penal authority in cases of economic exploitation crimes, in addition to implementing policies at the welfare level. For key economic exploitation crimes, including theft, fraud, blackmail, embezzlement, and breach of trust, Article 328 (1) and (2) of the Criminal Act currently exempts close relatives from punishment, with distant relatives subject to prosecution only if a complaint is filed. This particular relative exception poses a hindrance to the effective prevention and punishment of economic exploitation crimes. There have been academic discussions regarding the existence or abolition of this regulation, and amendments have been proposed at the National Assembly level. However, these discussions have mainly focused on horizontal kinship relationships, neglecting considerations for exploitation crimes within unbalanced family relationships. This article argues that, as a fundamental prerequisite for the state to actively address crimes of economic exploitation against the elderly, a clear provision is necessary to exclude the application of special relative exceptions to such crimes. As part of an improvement plan, it is suggested to categorize property crimes, to which the exception currently applies under criminal law and special laws, as crimes related to elder abuse under the Elderly Welfare Act. Furthermore, a new clause should be introduced to exclude the special relative exception provisions for these crimes.