주거침입죄에서 침입의 정의와 판단기준

Abstract

Recently, the Supreme Court has changed the meaning of trespass, which is an act of trespassing. Previous precedents put the ‘victim’s will’ at the core of trespass, but the new case changed the central mark of trespass to ‘intrusion of de facto tranquility’. However, this article evaluates that the jurisprudence of the new case law is rather incomplete. Therefore, this article proposes a comprehensive summary of the definition of trespass and the criteria for judging it. Its contents are summarized as follows. ① Trespass is defined as “entering into a dwelling in an act that harms the state of de facto tranquility enjoyed by a resident”. ② The primary criterion for judging trespass is whether it is against the will of the resident. If an outsider enters other’s residence even though the resident has expressed his intention to deny entry realistically (explicitly or implicitly), the resident’s tranquility is violated. Thus, entry by the outsider is treated as trespass. ③ In cases where the actual intention of the resident (intention to grant permission) is due to an error, when the intention of the resident has to be estimated because the actual intention is not confirmed, or when there is a conflict of intention between the residents in a common residence, the factor on the part of the actor should be used as a criterion for judgment. ④ The factors on the actor’s side used as the criterion for trespass are the actor’s ‘subjective intention’ and ‘objective and external behavior’. Although the <Majority Opinion> of the new precedent focuses on the latter, this article supplements the <Majority Opinion> and suggests both factors as the criterion for judging trespass.