[절도][집39(3)형,850;공1991.10.15.(906),2463]
Whether the defendant is a relative under Article 777 subparagraph 1 of the former Civil Act (amended by Act No. 4199 of Jan. 13, 1990) in the case of the defendant who is the father of the mother of the victim (negative)
If the defendant is the father of the victim's father's death relative or grandchild, the defendant cannot be said to have a relative with the victim within the eighth degree of kinship under Article 777 subparagraph 1 of the former Civil Act (amended by Act No. 4199 of Jan. 13, 190) and therefore, he can not be said to have a relative within the eighth degree of paternal relationship under Article 777 subparagraph 1 of the former Civil Act.
Articles 768 and 777 subparagraph 1 of the former Civil Act (amended by Act No. 4199, Jan. 13, 1990); Article 328 (2) of the Criminal Act
[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Han, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant-appellant-appellee)
Defendant [Defendant-Appellant] Prosecutor [Defense Counsel] Attorney Yellow-hwan
Seoul Criminal Court Decision 90No3815 delivered on August 28, 1990
The judgment of the court below is reversed, and the case is remanded to the Panel Division of the Seoul Criminal Court.
We examine the grounds of appeal.
According to the reasoning of the judgment below, the court below acknowledged the fact that the defendant was the father of the thief or the grandchild of the thief of this case, and dismissed the prosecution of this case on the ground that the defendant did not file a complaint against the victim pursuant to Articles 344 and 328 (2) of the Criminal Act, since he was the lineal descendant of the victim's lineal ascendant, he was the lineal descendant of the thief of the thief of the victim's lineal ascendant, and that he was the lineal descendant of the thief of the thief of this case.
However, according to Article 768 of the former Civil Code, blood relatives are their own lineal ascendants and descendants, their own siblings and siblings, their lineal descendants, their siblings and their linear descendants. According to this, if the defendant is a grandchild or a grandchild of the father of the victim, as recognized by the court below, he cannot be deemed to have a relative of a paternal blood relationship between the victim and the victim within the eighth degree of relationship under Article 777 (1) of the former Civil Code.
Nevertheless, the lower court’s conclusion that the victim and the Defendant were in a paternal relationship within the eighth degree of relationship has influenced the conclusion of the judgment by misapprehending the legal doctrine on the scope of blood relatives and relatives. The allegation is with merit.
Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.
Justices Kim Yong-sung (Presiding Justice)