주거침입죄의 문제점과 재구성

Abstract

Housebreaking is a crime that is constituted by trespassing on a person's dwelling. Although the components of housebreaking are not to the extent of violating the principle of clarity, it is not easy for ordinary citizens to guess the scope and limits of housebreaking as they are not specific and clear. Even in the academic world and the courts, which should supplement this, there is no consensus. In the end, the damage is going back to the people who have to obey the law. In previous precedents, because the establishment of housebreaking was dependent on the subjective will of the resident, and the criminality of housebreaking was expanded. Until recently, housebreaking was used as a means of private retaliation against an adulterous spouse. Even though it can be resolved by filing a divorce suit or claiming compensation for damages, punishing for housebreaking violates Principle of Complementarity. Judging housebreaking based only on the intention of the resident in previous precedents may cause problems which the inner intention of the resident such as private retaliation turns into the intention of the resident. Therefore, the way to return to the original place of housebreaking is to judge the trespassing as 'infringing de facto serenity'. Therefore, it is proposed to change the crime of trespassing to “violation of virtual peace by entering a dwelling, building, ship, aircraft, or room managed or occupied by another person.” This alteration would normally not violate the de facto tranquility of the dwelling, provided entry and exit were not through the use of force. However, there may be cases where it can be regarded as actually violating the state of tranquility even if there is no use of physical force on entry and exit. For example, in the case of a single person's residence with a high need for privacy, unauthorized entry into a house where no one is present, sneaking into a building where outsiders' access is strictly controlled without the consent of the resident or manager, or the resident or manager prohibits or restricts access at the time of entry. However, in the case of ignoring this and entering, it may be an act of trespassing as a case in which the state of de facto peace is violated in light of the various circumstances seen above. Even if with a criminal purpose entering a public place such as a restaurant without the exercise of physical force, or even if a criminal purpose occurred after entering without the exercise of physical force, it should not be punished as housebreaking except in the case of punishment for a purposed crime. In this case, if there is an act corresponding to the preparation, conspiracy, or attempt of the intended crime, the crime of preparation, conspiracy, or attempt of the crime shall be punished.