친족후견인의 피후견인에 대한 재산범죄에서 친족상도례 적용 여부 — 헌법재판소의 형면제 친족상도례 헌법불합치 결정 및 대법원 2024. 7. 25. 선고 2023도18201 판결을 계기로 —

초록

The question of whether the Relative Thief Rule applies to property crimes committed by guardians against their wards has been dealt with by our courts in the past in lower courts, but has not been actively discussed in academic circles. The subject judgment could have been an opportunity to make a clear judgment on this issue, but it can be evaluated that the judgment on it was effectively reserved due to the Constitutional Court’s decision that the Relative Thief Rule for exemption from punishment is unconstitutional. However, this issue has not completely lost its significance for discussion. In the current reality where relatives of wards are frequently appointed as guardians in the adult guardianship system, it is certainly necessary to re-discuss the issue of whether Relative Thief Rule, which will be newly legislated in accordance with the Constitutional Court’s decision in the future, will be applied to property crimes committed by kinship guardians against their wards. There is also an opinion that the application of Relative Thief Rule can be immediately excluded based on the purpose of the Relative Thief Rule, which is to refrain from intervening in property issues between relatives with the state’s right to punish, and the public nature of the guardianship system, but such an interpretation is considered unacceptable because it violates the principle of legality and legislative power. In order for the protection of wards sought by the guardianship system to be enforced, it is inevitable to exclude the application of the Relative Thief Rule in this case, and legislation that explicitly states this point needs to be enacted. The legislative example of the French criminal law, which stipulates the exclusion of the application of Relative Thief Rule to property crimes committed by guardians against their wards, provides us with clear and useful implications in this regard.

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