The Criminal Code's “special exception to relatives” clause, which exempts the punishment of property crimes between relatives, has been put on the operating table.

The Constitutional Court ruled Article 328(1) of the Criminal Code, which includes the “special exception to relatives” clause, unconstitutional with the consensus of all judges. The clause will not be applied until it is amended by the National Assembly, and if it is not amended, it becomes invalid. The court ruled that the clause of “crime subject to victim's complaint,” which requires the victim to file a complaint in the case of relatives who are not subject to the special exception clause, is constitutional.

Article 328(1) of the Criminal Code provides for exemption from sentence for property crimes, such as theft, fraud, extortion, embezzlement, larceny, and obstruction of rights between lineal blood relatives, spouses, cohabiting relatives, cohabiting family members, or their spouses. The Constitutional Court found that this clause violated the victim's right to testify at trial by exempting them from punishment without considering the specific relationship between the parties to the crime.

"As long as a certain kinship exists between the perpetrator and the victim of a property crime, the Constitution authorizes the judge to issue a judgment exempting the victim from punishment without inquiring into the actual relationship between the victim and the perpetrator, and without specifically considering the victim's intention to punish the perpetrator, or the nature of the crime and the extent of the damage caused," the Constitutional Court noted. "There is a concern that the scope of relatives covered is too broad and may lead to results that are inconsistent with the institutional purpose." The intention is to change the type and scope of crimes to which the “special exception to relatives” clause is applied.

However, a constitutional decision was made on Article 328 (2) of the Criminal Code, which stipulates that if a relative who is not included in the scope of the application of the special exception clause commits a property crime, the victim must file a complaint to prosecute the relative. The victim cannot file a complaint after six months from the date he or she became aware of the criminal. The problem with the clause was that the perpetrator could appeal to the victim to delay filing charges under the pretext of being a relative, and if the period of six months was passed, the victim could not prosecute the case.

The “special exception to relatives” clause was introduced when the Criminal Code was enacted in 1953 to the effect that judicial institutions do not intervene in family matters. Since then, it has been criticized for losing its meaning as family disputes have increased and its ties have weakened. Recently, it came under fire when it was revealed that comedian and presenter Park Soo-hong's father tried to avoid punishment by abusing the special exception clause in a case where Park’s older brother embezzled his profits.

Following the decision on unconstitutionality, the National Assembly must revise the clause by December 31 next year. The Constitutional Court found that the "one-size-fits-all sentencing exemption" was in need of improvement, but acknowledged the need for a special exemption for property crimes committed between close family members. Therefore, it is expected that the National Assembly will reflect this and specify the targets and crimes covered by the special exception clause.