[WHY] The special rule of law in Korean family conflicts

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Published: 22 Oct. 2022, 07:00 Updated: 24 Oct. 2022, 17:25

[WHY] The special rule of law in Korean family conflicts

Entertainer Park Su-hong [MBC]

A father steals millions of dollars and spends it all. No matter how many times the victim tries to sue him, he never gets punished. The victim, by the way, is the man's own son.

Regardless of how long the dispute has been going on, the victim cannot legally ask the man for anything, not even a dollar — the sole reason being, he is registered as his father.

Believe it or not, this is what Korean law specifies in a special clause of the Criminal Act, referred to as the special exception for relatives.

The law emerged as a hot potato recently after TV personality Park Su-hong’s story was made public. Park filed a complaint against his older brother for embezzling 11.6 billion won ($8 million) in 2021, claiming that his brother operated a management company that has represented Park for the past 30 years but did not properly pay him.

Park claimed that they previously agreed that the brother would take 20 percent of the profits Park makes, while Park would take the remaining 80 percent. However, Park said his brother did not stick to the terms of their agreement and also used a corporate card to pay for his own personal expenses with Park's money.

Park’s brother was arrested on Sept. 14 on charges of embezzlement. The Seoul Western District Court at the time said it conducted an interrogation of Park’s brother and decided to issue an arrest warrant based on concerns that the suspect would “destruct evidence or flee.”

But, wait, there's a twist: After Park sued, Park’s father suddenly came out with the argument that he was the one who embezzled the money, not the brother. Many lawyers argue that the father’s act is to protect Park’s older brother, which is his eldest son.

Lawyers and lawmakers are calling for the revision, or even an altogether abolition, of the law, which has been in Korea for about 70 years.

What exactly is the law?

Article 328, Clause 1 of Korea’s Criminal Act specifies that “when the crime is committed against lineal blood relatives of the offender [parents, grandparents, children and grandchildren], the spouse, relatives living together, family members living together or their spouses, punishment therefore shall be remitted.”

When the crime is committed against relatives other than those specified, the "prosecution shall be instituted only upon complaint."

The crimes which apply to this law are seven property crimes including larceny, fraud, embezzlement and breach of trust.

The Criminal Act defines relatives as “blood relatives within the eighth degree of relationship,” “affinity relatives [in-laws] within the fourth degree of relationship,” and “spouses.” When the crime is committed against relatives other than those specified, the "prosecution shall be instituted only upon complaint."

Korea classifies family relationships with a degree system called chonsu, with lower degrees meaning a closer relation in the family tree. This way of classifying family relationships is unique to Korea, according to the National Institute of Korean History.

This means brothers or sisters are only exempt from punishment if they are living together. Since Park does not live with his brother, if his brother turns out to be guilty, he will have to be punished.

But, if it turns out that the father committed the crime, the punishment will be remitted.

Park’s lawyer Noh Jong-eon explained that the father’s action is an attempt to use the special relative exemption as a loophole in an effort to protect his eldest son.

Park was admitted to the hospital after allegedly being assaulted by his father during a cross-examination at the Seoul Western District Prosecutors' Office on Oct. 4. [SCREEN CAPTURE]

Will Park's father be punishable?

Even if it turns out that Park's father really was the one who embezzled Park's money, no: He will be immune to punishment.

But this will not likely happen. Many experts are of the opinion that the court will not accept the father's claim that every crime was done by him.

“Park’s father is just lying because he wants to protect his firstborn son,” Seung Jae-hyun, a senior researcher at the Korea Institute of Criminology and Justice (KICJ).

“The rule of exception for relatives only applies when it turns out that the relative in question actually committed the crime,” Seung added. “But that's not the case here: Park’s father’s argument is not convincing at all.”

Lawyer Son Soo-ho from Son and Partners agrees with Seung.

“It is not really convincing that the father, in his 80s, managed all the corporate accounts and assets,” Son said during an interview with CBS Radio.

Is Korea the only country that has such a law?

No, but Korea may be the country with the strictest guidelines.

According to a recent report by the National Assembly Research Service, the United States and Britain do not have such a law. Some European countries like Germany, France, Switzerland and Austria have similar laws to Korea, but the term “relative” has a much more narrow scope.

France, the country that first adopted the concept, only applies the exception to lineal ascendants, lineal descendants and spouses. But in the case of spouses, the rule does not apply if they are living separately.

Only four crimes in France are eligible for the punishment exemption: Coercion, extortion, fraud and embezzlement.

Even in Japan, the definition of “relative” is more narrow than in Korea. According to its law, Japan does not include “people living together” as relatives, nor “spouses.”

“Korea has a wider definition of relatives than other countries that have similar laws,” said Kim Kwang-hyun, a legislative research officer at the National Assembly Research Service.

“Also, it is often seen that Korea’s rule is advantageous for the criminals, not the victims.”

Park's father talks to a reporter, saying that he hit Park because Park did not greet him after not seeing each other for a year and a half. [SCREEN CAPTURE]

Where does the law originate?

The concept itself comes from the universal principles of Roman law.

Patria Potestas, which translates to the power of a father in Roman law, refers to the power that a father had over his family. If there were ever a case of theft within a family, Roman law did not allow just anyone to file a complaint, but gave all the power to the father.

The father, regardless of his age, could punish the criminals, even by death.

France first adopted the Roman concept and detailed them in its law in the 1900s. Other European countries followed suit.

Korea first introduced its version of the law in 1953.

The Korean Constitutional Court said the law came with the consideration that "it is desirable that families solve their problems on their own, free of interference from the state criminal punishment power" and intended to “prevent criminal punishment from breaking the peace of families.”

Are there many such cases in Korean history?

Actually, yes.

In 2018, a 35-year-old man stole 180 million won from his father due to cover his own gambling debt. The money was from the father's retirement fund, but the son was not punished as his crime was remitted due to the law.

In another case, in 2019, a man in his 30s stole his wife's cash and gold necklace that she had hidden in her dresser. He manipulated the apartment to make it look like a thief broke in, but was arrested by the police. However, he did not get punished.

In March, a 19-year-old son stole his father's two farm machines in March and sold them, pocketing 5.9 million won. The son was arrested but exempted from punishment.

There have been 214 consultations this year by the Korea Legal Aid Corporation regarding the law, as of end of September. It dealt with 225 cases in 2021 and 256 cases in 2020.

Has Korea ever tried to abolish the rule?

Indeed, there have been many attempts to abolish the rule. But they all failed.

A revision had been proposed in 1992, but it didn’t get through the National Assembly. The revision proposed to narrow the scope of “relative” to include just “blood relatives, spouses and relatives living together.”

But the National Assembly rejected the revision as it “would cause confusion.”

More attempts followed in 2014 and 2017, but they all failed to pass through the National Assembly.

Three Democratic Party lawmakers again proposed the revision in June and July last year, right after Park’s case was made public.

According to a recent JoongAng Ilbo survey of 32,458 people, 85 percent, or 27,702 people, said the law should be abolished. Some 11 percent opposed, while the remaining 4 percent answered they have no opinion.

Justice Minister Han Dong-hoon also said he agrees on the need for a revision of the law during an annual parliamentary hearing held on Oct. 6, adding that it is "hardly applicable to today's society."

What do experts think about the law?

Experts see both sides of the coin, though many lawyers agree that the rule should at least be revised.

“We can make the rule more specific, such as allowing punishment for those who abuse the rule and purposely committed crimes,” Seung from KICJ said.

“Narrowing down the definition of relatives could be another answer, as the definition of family has changed a lot,” Seung said. “We can make the law only applicable to parents, children and spouses, and make it an offense subject to complaint.”

An offense subject to complaint refers to offenses that cannot be prosecuted without a complaint by the victim, according to Korean law.

Ryu Gi-hwan, a police administration professor at Sehan University, emphasized the importance of excluding those who have committed crimes against people with disabilities from the remittance.

“We should consider excluding criminals who committed crimes with very harmful intentions from the remittance,” Ryu wrote in a recent report.

“Let’s say a person commits a crime against someone who has a disability, knowing that the person is disabled,” Ryu said. “If we remit punishment for the person, it’s making the existence of the rule itself so meaningless.”

But many still agree that completely abolishing the law cannot be the absolute key.

“If we abolish this law, nearly no one can be free of punishment, and Korea will become a very closed country,” Seung said.

“Laws should never cross the family threshold.”

BY SARAH CHEA [chea.sarah@joongang.co.kr]