‘흉기휴대 공갈’친족상도례 적용의 타당성 대상판결 : 대법원 2010. 7. 29. 선고 2010도5795 판결

Abstract

Special exception to relatives applies to property crimes except robbery and destruction. Extortion armed with a deadly weapon unlike robbery shall have reasonable evidence why it shall apply to special exception to relatives. When the evidence is compared with robbery, first of all, it is not reasonable that the legal interest of extortion is on the side of possibility, generating from the resultof infringing life or body by violence or intimidation as the legal interest of robbery is to protect the life or body. Second, violence and intimidation of robbery are enough to have reached ‘suppression against the opposite party’s disobedience’. However, a robber tries to do violence or intimidation, but it is not rationale that the attempted robbery which is not enough to have reached suppression against the opposite party’s disobedience and the conspiracy or preparation for the robberywhich has not reached commencement stage is excluded as special exception to relatives. Third, robbery implies that one shall acquire any property or benefits to property against opposite party’s will, but it is not valid that embezzlement, breach of trust,and robbery apply to special exception to relatives, even though they acquire any property or benefits to property against opposite party’s will. Law on Punishment of Violent Acts excludes application of Banuisabulbeoljoe It means that the perpetrator shall not be punished if the victim does not want his punishment. in case of violence or intimidation with respect to ‘Armed with a deadly weapon to Relatives’. However, extortion armed with a deadly weapon to relatives applies to special exception. In other words, violence or intimidation to relatives is punished, but it is against people’s law sentiment that acquisition of any property or benefits to property by violence or intimidation is not punished. The reason of existence of special exception to relatives is to aim not for family members’ ownership or protection of property but for protection of family’s peace. Admitting it in case of possibility which gives relatives damages against their life or body would break a balance of social law and order totally and give up using the authority of the state’s punishment. If so, the criterion with respect to whether or not special exception to relatives applies shall exclude crimes which make it possible to injure relatives’life or body. Therefore, extortion and attempted extortion except robbery shall be excluded from application of special exception to relatives and it is reasonable that they are regulated by Law on Punishment of Violent Acts