Take the Family Money and Run

Korea’s Criminal Act, Article 328, Clause 1 is known as the “Family Theft Article.” The article, first introduced in 1958, allows exemption for crimes that occur between relatives. Specifically, lineal blood relatives, cohabiting relatives, and spouses of the accuser may be remitted from trial and punishments. The exemption is restricted to property crimes such as theft, fraud, blackmail, embezzlement, and breach of trust.

It is Family Business

The special provision was enacted to minimize state intervention in family matters. For example, it would be excessive and inappropriate for investigative agencies to look into cases in which children stole a small amount of money from their relative’s wallet. According to Je Cheol-ung, a professor from the School of Law at Hanyang University, “In the past, the norm was to emphasize kinship over personal rights, especially in countries where collectivism was strong. The Family Theft Action was enacted under the idea that family matters should be settled upon private agreement.” The problem is that its once- harmless intentions backfire.

Park’s Case Sparks Attention

Recently, the case of the Korean comedian Park Soo-hong has sparked public attention and shed light on the Family Theft Article. In April 2022, Park filed an accusation claiming that his older brother embezzled more than ten billion won of his personal savings and TV appearance payments. This October, Park’s father asserted that he, not Park’s brother, was the culprit of the embezzlement case. This is because Park’s brother is neither a cohabiting nor blood relative of Park, thus prone to punishment. However, Park’s father is a lineal blood relative, and qualifies for the provision’s criterion. According to Roh Jong-eon, the lawyer in charge of Park’s case, “As long as the Family Theft Article exists, the victims of family crimes are at an absolute disadvantage. This is because the police would have no choice but to immediately terminate the case, because the article itself is an outright exemption.” Hence, Park’s father is taking the blame on himself, abusing the fact that he has a dominant position according to the legal system; as long as his testimony is accepted, he is unpunishable. Lawyer Roh also added, “In cases like this, victims just had to accept that the law was what it was and let go. Though belatedly, it is fortunate that Park’s case drew public attention to Family Theft Article abuses.” Certainly, there have been many cases besides Park’s in which the article has favored those with ill intentions. According to the Korea Legal Aid Corporation, the number of coun- seled cases related to the Family Theft Article recorded 299 in 2017, 630 in 2018, 356 in 2019, 256 in 2020, 225 in 2021, and 214 as of this year. The provision is most abused on crimes targeting vulnerable social groups, such as the elderly and the disabled. In fact, the Ministry of Health and Welfare noted in its 2019 Disability Abuse Status Report that 19.2 percent of the disabled’s economic exploitation offenders were family members and relatives.

Kinship Will Never be the Same

The Family Theft Article, once created to encourage resolving family con- flicts peacefully, has distorted into a popular indulgence option. To date, the bill has remained in place due to concerns that the household peace would break in its absence. However, professor Je stated, “These days, the kinship community has disappeared, and the legal system should evolve towards individual rights. Abuse cases arise because the article is tailored to a culture of the past.” As a matter of fact, relative ties have undergone substantial changes since 1958; the system on the head of the household was abol- ished in 2005, the ratio of single-person households exceeded 40 percent for the very first time in 2021, and the concept of kinship has changed due to the decrease in parent filial obligations. In addition, the scope of criterion-meeting relatives is wider in Korea than in other countries. The acquittal effectiveness is also favorable to the perpetrator, as the scope of applicable crimes like theft and real estate invasion is wider.

To Prolong or to Eliminate, That is the Question

Due to the Family Theft Article’s detrimental consequences, a heated debate has been initiated on whether it should remain in the Criminal Act. Those against the article assert that the provision should be abolished for good. The main reason for opposition is that it violates Article 27, Clause 1 of the Korean constitution: the people’s right to a free trial. As a matter of fact, all three interviewees, each being either a law professor or lawyer, supported the oppo- sition party. In particular, Park’s lawyer Roh emphasized, “Every Korean citizen must have the right to free trial when they have suffered from substantial dam- age or crime. In all crimes, sufficient trial procedures must be available. However, the Family Theft Act states that family crimes can incapacitate this right. This perception should change. If anything, families should be particularly cautious not to cause damage to each other and face the music when they have, because that is what ‘family’ is, after all.” Moreover, the longer the pro- vision is in place, the more abuse crimes there will be. Conversely, those that advocate the Family Theft Act concern that the abolishment can lead to an unwelcomed surge in criminal cases. This may become a nuisance for police and prosecutor forces, even worse, a waste of governmental assets and time. For instance, after the Korean Constitutional Court ruled the elimina- tion of the Adultery Law in 2016, there was an increase in house trespassing criminal cases. Of course, this was a mere alternative means to punish a mis- tress or misteress in the absence of the Adultery Law. Even now, the debate over the provision’s prolongation is tense. Nevertheless, there seems to be a consensus that the Family Theft Article should at least be amended.

The Infamous Family Theft Article: What Now?

Many amendment proposals toward the notorious provision were published; some were even introduced at the National Assembly. However, one of the most advocated proposals is the one published by the Hankuk University of Foreign Studies Law Research Institute in 2016. The proposal’s contents are to alter the terms to no longer classify rela- tives of whether they meet the criterion, but only institute this exemption under the accuser’s demand. Under this amendment, cases of abusing the article by taking another’s blame on oneself like Park’s, will decrease because there will no longer be a line drawn between relatives of application. Moreover, since all relative offenders must go to trial in absence of the accuser’s plead, this will eliminate the article’s infamous absolute exemption rule. According to Kwon Yong-duk, a lawyer registered with the Korean Bar Association, “It is desirable that the legal system amends the Family Theft Article, in cases where abolishment is unlikely. For instance, there have been many cases in which one claimed to be a guardian for their minor or disabled relative and stole their property but was resistant to punishment. However, if the absolute exemption term is crossed out, those kinds of offenders will stand trial.” In other words, it is indisputable that the provision act should reflect society’s changes and needs.

What Remains for Park?

Meanwhile, the question of whether Park has no hope due to the Family Theft Article still arises. Lawyer Kwon carefully predicted, “The Korean prose- cution has completed the case’s investi- gation and handed over Park’s brother and sister-in-law to trial. This means that the legal proceeding conditions have been met; it was a crime committed between non-cohabiting relatives in which the accuser filed a complaint within six months. Moreover, this means that the prosecution is confident that the offender will be found guilty, so no mat- ter how much Park’s father asserts he did it, those put on trial will probably be convicted. In South Korea, around 98 percent of convictions are found guilty if handed over to criminal trial. This is because the prosecution does not hand over criminal trials in the first place if there is any doubt of conviction.” In other words, Park’s case is likely to for- tunately dodge the attempt of provision abuse. However, there are still many that are victimized in similar cases. It is time to address and resolve the problems of the Family Theft Article to restore its original enactment purpose: to protect the most important component of society, the family.