주거침입죄에서 침입의 의미와 판단기준

Abstract

The gist of the instant case pertains to whether the crime of intrusion into a human habitation is established in a case where, although a defendant entered another person’s property upon the resident’s permission, it is recognized that the entry was for the purpose of criminal or illegal conduct or that the resident would not have given permission of entry had he or she known the real purpose of the defendant’s entry. The Supreme Court recognized in previous decisions that a criminal charge for intruding into a human habitation is established in a case involving a restaurant where public access is allowed, if a defendant entered the restaurant against express or assumptive intention of the owner of the restaurant. The Supreme Court changed its previous decisions by determining that the defendant in the subject case is not considered to have committed an act of intrusion on the following grounds: (a) if a perpetrator entered a restaurant where public access is allowed upon permission of the business owner by regular methods of entry, such entry does not constitute an act of intrusion as stipulated in the crime of intrusion into another person’s property unless special circumstances exist; (b) even if the perpetrator entered the restaurant for criminal purposes or it is recognized that the business owner would not have permitted the perpetrator’s entry had he or she known the true purpose of the entry, it cannot be evaluated that the perpetrator entered the restaurant in the manner of disturbing a state of peace, on the sole basis of the above circumstances, in light of the mode of conduct manifested objectively and externally at the time of entry. The Supreme Court reached the foregoing conclusion based on the legal doctrine revealed in the Supreme Court Decision 2020Do12630 Decided September 9, 2021, which goes as follows: (a) intrusion, an act which constitutes a crime of intrusion, into another person’s habitation, needs to be interpreted in comparison with the protected legal interests of the crime of intrusion; (b) intrusion means an act of entering another person’s residence in way of disturbing peace and tranquility in the said residence; (c) whether a certain act constitutes intrusion needs to be determined, as a matter of principle, on the basis of the mode of action revealed objectively and externally at the time of the entry at issue; (d) if a perpetrator enters another person’s residence in a way that disturbs a state of peace, such an act of the perpetrator would generally be against the intention of the resident; (e) however, an act of entering another person’s property cannot be immediately considered to constitute intrusion on the sole basis of the subjective circumstance that the relevant entry was made against the will of the resident. In so determining, the Supreme Court clarified that the key measure in determining whether an act of entering constitutes intrusion in the criminal charge of intruding into another person’s habitation is not whether the entry was made against the will of the resident but whether a de facto state of peace in a residence has been infringed upon considering the mode of conduct objectively and externally manifested at the time of the entry at issue. The foregoing en banc decision and the subject case revised the meaning of intrusion and the standard of determination of what constitutes intrusion to limit the scope of the establishment of the crime of intrusion in relation to its protected legal interest on the following concerns: (a) understanding the meaning of intrusion as “entering another person’s residence against the intention of the resident,” like the previous Supreme Court decision did, would enable the recognition of the establishment of the crime of intrusion on the sole basis of the subjective circumstance that the entry in question is against the will of the resident, and would therefore lead to the transcendence of the scope of legal interest to be protected by the crime of intrusion; (b) the elements of the protected legal interest of the criminal intrusion would become nonobjective and figurative; and (c) the scope of acts subject to punishment for the crime of intrusion would be excessively broadened and provoke unfair outcomes. Furthermore, the subject case set out specific elements of consideration for determination of whether a certain act was committed in way of disturbing a de facto state of peace and tranquility, such as the type of residence to be entered, its intended use and features, how the entry of visitors is restricted and managed, and the details and method of the perpetrator’s entry. And based on these elements combined, the subject case clearly stated that a perpetrator’s act can be considered to constitute an act of intrusion when it is evaluated in normative terms that a de facto state of peace and tranquility in the residence was disturbed by the perpetrator’s entry in light of the mode of action revealed objectively and externally at the time of the entry in question. While the subject case affirmed that the intention of the resident is one element to be considered in determining whether a perpetrator’s act has been committed in way of disturbing a de facto state of peace, the subject case stated that it is not a major or fundamental element for consideration in determining whether a certain act constitutes an act of intrusion in that the extent to which it is taken into consideration may differ depending on the type, intended use, and features of the residence, etc., the manner in which a visitor’s access is restricted and managed, and the effectiveness of the said restriction. Three recent Supreme Court en banc decisions have been pronounced of late in relation to the crime of intrusion into another person’s property󰡈Supreme Court en banc Decision 2020Do12630, Sept. 9, 2021; Supreme Court en banc Decision 2020Do6085, Sept. 9, 2021; and Supreme Court en banc Decision 2017Do18272, Mar. 24, 2022. In all of the above decisions, the Supreme Court considered that the crime of intrusion into another person’s property is not established. Supreme Court en banc Decision 2020Do12630 concluded that in a case where a perpetrator entered a residence upon a de facto permission of one of the joint residents in ordinary method of entering, it cannot be considered that the perpetrator entered the residence in way of disturbing a de facto state of peace and tranquility, in terms of the purpose of the entry, even if the perpetrator’s entry was against the assumptive intention of the other resident who was absent at the time of the entry. Similarly, Supreme Court en banc Decision 2017Do18272 determined that insofar as the defendant entered a restaurant where public access is allowed upon a de facto permission of the restaurant owner in regular ways of entering, the defendant’s such entry may not be considered to be made in way of disturbing a de facto state of peace and tranquility on the sole basis of the fact that the entry in question was against the assumptive intention of the restaurant owner in terms of the defendant’s purpose of entering. Furthermore, Supreme Court en banc Decision 2020Do6085 determined that the crime of intrusion is not established in the following case where: (a) there was an express indication of the prohibition of entry by a resident who currently resides in the premise, and there was a use of force in the process of entering the residence; (b) when one of the cohabitants stopped other cohabitant from entering a common area of the residence without statutory basis or justifiable grounds, other cohabitant entered the common area of the residence with an outsider in resistance to such entry restrictions; (c) even if the said outsider’s act of entering the residence did violate the intention of the cohabitant who introduced an entry ban and a de facto state of peace and tranquility, insofar as it is considered as an act which goes with the regular act of entering and using the common area of the residence by the cohabitant whom the outsider accompanied, the visitor is not held liable for the crime of intrusion into another person’s habitation. The significance of the above en banc decision takes into consideration the purpose and attributes of the relationship of cohabitation and concludes that each cohabitant’s rights on common areas of residence buildings cannot be asserted against one another in absolute manner, and as a result, a legal interest of de facto peace and tranquility is bound to be restricted to a certain extent among cohabitants. The key purpose of these en banc decisions concerning criminal charges for entering another person’s property is to reasonably restrict the scope of the establishment of the crime of intrusion and the extent to which the criminal charges for intruding on another person’s property is punished.