Critical Review about Parricide Crimes of Korean Criminal Law
Authors:   J-INSTITUTE, Park Kwanghyun 
Published: September 2023

Purpose: In recent years, the number of infanticide cases has been steady at around 30 per year and the number of toddler murders at around 10 per year, which are generally punishable as ordinary murder. Also Crimes against immediate family members are subject to aggravated penalties. A person(descendant) who kills a member of his or her own or his or her spouse's immediate family is guilty of subsistence murder, which is punishable by death, life imprisonment, or imprisonment for seven years or more. This is a more severe offense than ordinary murder, which is punishable by death, life imprisonment, or imprisonment for five years or more. Most survival-related violent crimes, such as injury, assault, abandonment, abuse, arrest, confinement, and intimidation, have aggravated penalties. However, under the current law, there is no provision for aggravated punishment for violent crimes against direct survivors. There is an aggravated punishment for the murder of a direct survivor by a direct descendant, but there is no aggravated punishment for the murder of a direct descendant by a direct descendant. The Korean Constitution stipulates that “no one shall be discriminated against on the basis of social status”, which may violate the Equal Rights Clause of Article 11 of the Constitution. In other words, it is unconstitutional because it may constitute “discrimination based on birth”. Therefore, we would like to critically examine whether the Korean criminal law should continue to provide for the offense of feticide.
Method: The aggravated punishment of capital murder is one of the most controversial issues in society. In this critical review of the aggravated murder penalty, we will first look at the Constitutional Court's decision on the aggravated murder penalty. Second, we will look at the arguments in favor of and against the aggravated penalty of capital murder. Third, we will examine the current state of affairs through a comparative legal review of foreign jurisprudence on the aggravated punishment of capital murder. Fourth, the legal, moral, and religious perspectives on the aggravated punishment of capital murder will be discussed. Fifth, based on the above discussion, we will provide a direction on whether to abolish the aggravated penalty of capital murder.
Results: It is recommended that the aggravated punishment for survival murder be abolished as it violates the right to equality under the Korean Constitution. Even if it is abolished, the purpose of the punishment can still be realized through judicial modification.
Conclusion: In light of the meaning and legislative purpose of the provision that aggravates the crime of intentional homicide, it cannot be said that the legislative act of selecting a comparative standard, i.e., that intentional homicide is more severely punished than ordinary homicide in the Korean Penal Code, is unconstitutional. However, while the criminal laws have the same criminal offense of killing a person, there is a difference in the 'presence or absence of paternity'. The abolition of capital murder is consistent with the principle of proportionality. It would be contrary to the principle of proportionality to impose severe restrictions based on prosecutorial convenience. For these reasons, it would be a violation of the constitutional principle of equality, and even if it is not unconstitutional, it is difficult to see that it reflects constitutional values such as the principle of equality.