Path Opened for Punishing 'Theft of Property Among Relatives': Unconstitutional Familial Exception

 

On June 27, 2024, the Constitutional Court of Korea ruled that the provision of the Criminal Code exempting family members from punishment for property crimes is unconstitutional.

This decision was made unanimously by all Constitutional Court justices, stating that preventing victims from exercising the right to appropriate legal recourse for property crimes within families violates their right to procedural justice.

Decision of Constitutional Nonconformity

The Constitutional Court declared the familial exception provision in Article 328, Paragraph 1 of the Criminal Code unconstitutional. The decision of constitutional nonconformity means that while the law is deemed unconstitutional, it is maintained for a specified period to prevent social confusion. The court has given the National Assembly until December 31, 2025, to amend this law.

Article 328, Paragraph 1 of the Criminal Code

This provision states that "direct blood relatives, spouses, cohabiting relatives, heads of household, family members, or their spouses" are exempt from punishment for property crimes. While originally intended to prevent state interference in family matters, the recent court decision highlighted its limitations.

Background of the Cases

The cases considered by the Constitutional Court involved vulnerable family members who were victims of property crimes. For example, a person with a disability accused their uncle of quasi-fraud and embezzlement, or a child acting on behalf of their mother with Parkinson's disease accused siblings of embezzlement. All these cases were dismissed under the familial exception provision.

Court's Judgement

The court determined that "exempting all property crimes uniformly based on family relationships is unjust." They also noted that even in cases of embezzlement with benefits exceeding 5 billion KRW (approx. 50 million USD), this provision could lead to exemptions, underscoring that some property crimes are not easily remedied or reconciled.

Concerns About Infringement on Basic Rights

The court expressed particular concern that applying this provision to individuals unable to make independent decisions could result in economic exploitation of vulnerable family members.

Task for the National Assembly

The Constitutional Court has tasked the National Assembly with amending the familial exception provision by December 31, 2025. The court emphasized, "There can be various options to remove the unconstitutionality of this provision," and stressed the need for "sufficient social consensus to find a solution."

 

 

 

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