공갈죄에서 친족특례의 적용

Abstract

The exceptional rule of larceny committed against relatives shall be applied to the crime of extortion in accordance with the Criminal Code, Article 354 and Article 328. The crime of extortion, one of property crimes notwithstanding, has parallels in crimes of violence considering its actus reus: assault and intimidation. An aggravated punishment is provided for extortion in the Punishment of Violence, etc. Act, Article 2 & Article 3 and the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 3. Corresponding with the construction of law, the Court has coherently held that property crimes as referred to in special acts involve the character of those under the Criminal Code, thus applying the exceptional rule of larceny committed against relatives under the Criminal Code to them pari passu, unless apparently excluded. Nonetheless, crimes of assault and intimidation against relatives in the Punishment of Violence, etc. Act may be punished, since they can be prosecuted against objection of the victim. Comparing with crimes of extortion not punished under the same act, we can bring up a subject about the imbalance in punishment. The main topic of discussion is that the act of violence and intimidation incorporated in actus reus of extortion would be prosecuted in isolation, on the one hand, in case of extortion against distant relatives(crime subject to prosecution on complaint), if a complaint were withdrawn, not filed or filed after the period of complaint expired. If it could be prosecuted separately, the indictment should be dismissed(Theory of Dismissal of a Prosecution). Committed against close relatives, on the other hand, the court should exempt a defendant from punishment, considering ratio legis of exceptional rule larceny committed against relatives, which provide necessary exemption from punishment regardless of consent of victim (Theory of Punishment Exemption).