June 27, 2024: A Constitutional Nonconformity Ruling After 71 Years
On June 27, 2024, the Constitutional Court issued a constitutional nonconformity ruling on Article 328, Paragraph 1 of the Criminal Act, the family theft exemption (chinjok sangdorye) clause. The provision that "property crimes between family members are exempt from punishment," maintained for 71 years since the Criminal Act's enactment in 1953, was immediately suspended as of that date. As the attorney who has seen the harm of the family theft exemption closest while representing Park Soo Hong, this article organizes the meaning, scope, temporal effect, and future trends of the constitutional nonconformity ruling from an academic perspective.
The Original Structure of the Family Theft Exemption Clause
Article 328, Paragraph 1 of the Criminal Act provided exemption from punishment for property crimes (fraud, theft, embezzlement, etc.) between lineal blood relatives, spouses, cohabiting relatives, cohabiting family members, or their spouses. For crimes between non-cohabiting relatives, Paragraph 2 of the same article set the offense as one requiring complaint, making punishment impossible if a complaint was not filed within a certain period from the date the crime was known.
The legislative spirit of this clause has roots in the family protection principle dating back to Roman law. Property issues within the family should be resolved within the family, and state penal power should refrain from intervening in the internal affairs of the family community.
The Meaning of Family Has Changed in 21st Century Society
The family in the era when the family theft exemption was originally operating had the following characteristics.
- Extended family co-residence units
- A life structure with strong joint property awareness
- A very high proportion of time during which family members acted as a family community
However, Korean families in the 21st century have rapidly changed in the following directions.
- Increase in single-person households
- Increase in non-married household forms
- Nuclearization of families
- Strengthening of individual property rights and disposal awareness
The law remained in its 1953 form, unable to keep up with the pace of social change, and the harm created by that gap was directly revealed in cases including Park Soo Hong's case and several other family property crime cases.
Key Holdings of the Constitutional Court Ruling
The core arguments by which the Constitutional Court held the family theft exemption clause to be in constitutional nonconformity can be organized as follows.
| Issue | Content |
|---|---|
| Victim's right to statement in judicial procedure | Uniformly deprived the victim of the right to make statements within judicial procedure |
| Unconstitutionality of uniform exemption | Exemption automated regardless of specific case circumstances |
| Concern over accelerated family breakdown | Unconditional exemption rather destroyed the trust foundation of the family community |
| Constitutional reinterpretation of family meaning | Defined not as mere blood ties but as relationships fulfilling substantive duties |
This ruling is in the same direction as the constitutional nonconformity ruling on legal portion issued at the same time. Both rulings carry a signal to reorganize "legal effects automatically applied just by the name of family."
The protection that the Constitutional Court grants to family is moving in the direction that it should operate only for relationships fulfilling substantive duties, not for the appearance of blood ties.
The Harm of the Learning Effect Shown by the Park Soo Hong Case
At the core of the Park Soo Hong case was the "learning effect" created by the family theft exemption clause. The very existence of this clause taught potential perpetrators that "family property can be taken without punishment."
While handling inheritance and family crime cases, I have repeatedly seen the following patterns. Cases where elderly parents were persuaded to transfer the parents' assets into the perpetrator's name, and cases where the perpetrator personally took unconscious parents to the community center to issue a seal certificate. I view the "learning of impunity" created by the family theft exemption clause as having weakened the very sense of guilt for such acts.
Learning that one will not be punished redefines a wrong act as an act that is "permitted to do."
Temporal Effect of the Constitutional Nonconformity Ruling
This is an area where misunderstandings often arise, so I would like to clarify it.
| Time | Effect |
|---|---|
| Crimes occurring before June 27, 2024 | Typically subject to the former family theft exemption provisions |
| Crimes occurring after June 27, 2024 | Application of the family theft exemption is suspended |
Under the principles of non-retroactivity of penal laws and prohibition of retroactive legislation, for crimes that occurred before the constitutional nonconformity ruling, the former provisions apply even if the complaint is filed afterward. Therefore, it must be organized that victims of already-occurred cases are not immediately remedied by this ruling.
Changes in Sentencing Trends for Crimes Within the Family
In addition to the family theft exemption clause, the Supreme Court's sentencing guidelines have typically treated crimes between family members as a mitigating factor. After this constitutional nonconformity ruling, stepwise adjustment to this sentencing trend is also expected.
- A trend toward stern punishment depending on the specific form of the crime, scale of damage, and damage recovery, even for crimes that occurred within the family
- The possibility that family relations will not function as a uniform mitigating factor in cases where the severity and cruelty of damage are recognized
- The possibility that family relations may even function as an aggravating factor in cases where damage has not been recovered
The appeal trial of the Park Soo Hong case has also entered the stage after the Constitutional Court ruling. The trend at the first instance, where mitigation was based on the ground of "crime between family members," will be reassessed at the appeal trial, which will become an indicator of future sentencing trends.
A Response to the Concern of "Excessive Family Complaints"
A concern frequently raised after this ruling is one. If the family theft exemption is abolished, complaints and lawsuits between family members will be excessive. The trend seen from attorney's practical experience is closer to the opposite.
While the family theft exemption clause existed, property crimes within the family were typically learned as "permitted acts." From within the case records, it has been repeatedly confirmed that learning that one would not be punished increased the frequency of the perpetrating acts themselves. If the possibility of punishment is restored, that learning effect itself disappears, and the frequency of perpetrating acts is likely to trend downward.
Restoring the possibility of punishment is not to enable excessive complaints, but to stop wrong learning.
Areas Requiring Future Review
| Area | Review item |
|---|---|
| Legislative consolidation | Preparation of new provisions consistent with the spirit of the constitutional nonconformity ruling |
| Investigation and prosecution practice | Consolidation of investigation and prosecution standards for cases between family members |
| Sentencing standards | Re-consolidation of the Supreme Court Sentencing Committee's sentencing standards for cases between family members |
| Victim protection | Separate protection procedures for victims of cases between family members |
| Social awareness | Social settlement of changes in awareness of the meaning of family |
While these area changes may appear abstract to victims of individual cases, they are also changes that directly affect the sentencing, settlement, and recovery process of your own case. You can check at Get a chat consultation now at what point and how your case is affected.
Frequently Received Questions
Q. Is it really difficult to be remedied for cases that occurred before the constitutional nonconformity ruling? A. Under the principle of non-retroactivity of penal laws, it is generally subject to the former family theft exemption provisions. However, there may be additional circumstances to review case by case, so individual review is needed.
Q. Does this ruling also apply to sexual crimes between family members? A. The family theft exemption was a clause applied to property crimes under the Criminal Act, and is a separate area from sexual crimes between family members. However, the direction of the ruling can be organized as being in the same flow as changes in social awareness of cases between family members as a whole.
Q. How will it be judged if the case straddles immediately before and after the constitutional nonconformity ruling? A. The trend is typically to determine the applicable provisions based on the time of the criminal act. The case-by-case assessment varies depending on whether the act is a single point in time or a series of acts over a certain period, so organizing the facts must come first.
If you wish to organize how cases occurring within the family are affected by this ruling, you can apply at Get a chat consultation now.
This article is a general legal information article written based on the above YouTube commentary by Attorney Noh Jongeon of Jonjae Law Firm.
Reviewing attorney: Attorney Noh Jongeon. Last reviewed: 2026-05-30
Disclaimer: This article is for the purpose of providing general legal information, not legal advice on the specific facts of individual cases. Even similar cases may have different results depending on facts and evidence, so those needing actual disputes or consultations must receive individual advice from a specialized attorney.
