The Supreme Court ruled that prosecutors must withdraw the indictment when parents do not want their son, who stole valuables kept in the master bedroom of the family home, to be punished.
The Supreme Court's First Division (Presiding Justice Ma Yong-ju) said on Mar. 7 that it overturned the lower court ruling that sentenced a man in his 30s, a person surnamed Kim, who was indicted on theft charges, and sent the case back to the Suwon District Court in the final appeal on Feb. 26.
Kim, in the early morning of Dec. 10, 2024, loaded a safe from the master bedroom onto a dolly and stole it while his parents were away from home. Inside the safe were cash, foreign currency, department store gift certificates, and a gold ring, totaling 24.31 million won in property. Kim is also accused of stealing 4.2 million won in cash from two vehicles in a building parking lot on Jun. 30, 2025.
The issue was whether to apply the special rule on theft among relatives. It is a special provision that exempts punishment or requires a complaint from the victim to prosecute property crimes such as theft and fraud that occur between lineal relatives and spouses. This was stipulated in Article 328 of the Criminal Act.
However, the Constitutional Court on Jun. 27, 2024, issued a decision of incompatibility with the Constitution regarding the provision on theft among relatives under the Criminal Act. It was the first such decision in 71 years since the clause was enacted. The court said state institutions must immediately suspend application of the statutory clause on theft among relatives.
Afterward, the National Assembly on Dec. 30 last year amended Article 328 of the Criminal Act to allow investigation, trial, and punishment of property crimes among relatives if there is a complaint from the victim, and it took effect the next day. The new provision was applied retroactively from the time the Constitutional Court issued the incompatibility decision.
The theft at Kim's parents' home occurred after the Constitutional Court found the rule on theft among relatives unconstitutional but before the National Assembly enacted a new statutory clause.
In the first trial on Aug. 26 last year, the court sentenced Kim to one year in prison. The first trial court said, "Although future legislation should follow the purpose of the decision of incompatibility with the Constitution (Criminal Act Article 328), a prompt judgment is required because this is a detention case and the crime was committed during the suspended sentence period, so we rendered a judgment without waiting for remedial legislation."
In the second trial on Dec. 17 last year, the court sentenced him to eight months in prison. The appellate court determined, "The Constitutional Court's decision appears to acknowledge the need for the rule on theft among relatives, while finding it unconstitutional to exempt punishment uniformly."
Ruling on the case after the National Assembly amended the Criminal Act, the Supreme Court found that the lower courts erred in convicting Kim. Before the first-instance sentencing on Aug. 19 last year, the parents submitted to the court a settlement agreement stating that they did not want Kim to be punished.
On that basis, the Supreme Court said, "Under the amended Article 328 of the Criminal Act, a complaint from the victim is required to indict Kim, but the victim withdrew the complaint against Kim before the first-instance sentencing," adding, "The appellate court should have entered a judgment dismissing the prosecution."
The Supreme Court quashed and remanded the case, ordering a new review and decision on charges other than the theft against his parents that Kim committed.