The Supreme Court ruled that the victim in the case of the brother-in-law secretly purchasing items and receiving cash services through the sister-in-law's mobile phone is the merchant. The second court had viewed the victim as the sister-in-law and applied the family theft exemption, relieving the brother-in-law of punishment, which was deemed incorrect.
The family theft exemption is a provision in criminal law that absolves punishment for property crimes such as embezzlement and theft among relatives. This provision was suspended last year on June 27 when the Constitutional Court made a decision deeming it unconstitutional, pending legislative amendments by the National Assembly.
According to the legal community on the 30th, the first division of the Supreme Court (Chief Justice Noh Tae-ak) overturned the second court's acquittal of A, who was indicted for a fraud case using computers, and sent the case back to the Changwon District Court.
A was indicted on charges of making payments for goods and services worth 77.2359 million won through the mobile phone of his sister-in-law B, with whom he had been living, making a total of 24 transactions and applying for cash services in December 2021.
A was sentenced to 1 year and 8 months in prison in the first trial. The court combined A's fraud charge against his sister-in-law with the charge of embezzling 112 million won from the company and ultimately imposed a prison sentence.
However, the second court ruled to exempt A from punishment concerning the fraud charge against his sister-in-law. They determined that since the victim in this case is the sister-in-law, the provisions of the family theft exemption in criminal law should be applied. The second trial ruling occurred after the Constitutional Court's ruling regarding the family theft exemption. The court stated, 'The fraud against the sister-in-law was committed before the Constitutional Court decision, so the family theft exemption can be applied.'
The Supreme Court overturned the second court's decision. The Supreme Court noted that 'the indictment filed by the prosecutor stated that the crime of fraud using computers ultimately makes the cardholder and account holder the actual victims, but the direct victims are the credit card company or financial institution, so the family theft exemption cannot be applied.'
Furthermore, it was stated, 'There is sufficient reason to view that the prosecutor treated the victim in this case as the merchant or lending financial institution and indicted A for fraud using computers.' Additionally, 'Depending on who the victim is, the application of the family theft exemption can differ, so the second court should have exercised its investigative authority to clarify the victim.'
Meanwhile, the Constitutional Court made a decision deeming the provision in Article 328-1 of the Criminal Act, which stipulates the family theft exemption, unconstitutional on June 27 last year. The Supreme Court stated, 'The Constitutional Court's decision deeming something unconstitutional is a ruling of unconstitutionality regarding legal provisions in a transformed form that is not stipulated by the Constitution and the Constitutional Court Act,' and stated, 'This provision should be deemed ineffective from the day the constitutional non-compliance decision was made.'