공동주거에 대한 주거침입죄의 성립 - 대법원 2021. 9. 9. 선고 2020도12630 전원합의체 판결을 중심으로 -

Abstract

This paper deals with the topic “Establishment of the crime of trespassing in a shared residence.” Focusing on the Supreme Court's recent 2020Do12630 en banc ruling, we are analyzing in depth the legal definition and scope of home invasion, the standards for judging intrusion, conflicts with housing rights between co-residents, and changes in social perception of home invasion. This paper emphasizes that the definition of home invasion was changed by the Supreme Court ruling to ‘entering a home in an act that harms the resident's actual tranquility.' This new legal interpretation focuses on the objective and external characteristics of entry and exit and presents a new standard for judging the crime of trespassing. ‘Trespass' in the crime of trespassing can be simply defined as the act of entering against the will of a resident worthy of protection, expressed explicitly or implicitly. According to this definition, various cases can be explained rationally and systematically. In addition, the judgment on conflicts of housing rights between co-residents deals with the conflict between the right to housing theory and the theory of tranquility, and discusses the issue of priority between the presumptive will of an absent resident and the will of an existing resident. Socially, the strengthening of awareness of home invasion crimes emphasizes the importance of residential tranquility and privacy protection, and is leading to the strengthening of related laws. This strengthened social awareness can be interpreted as the right to housing, and it is emphasized that whether or not the will of the person with the right to housing is violated serves as a criterion for judgment. The protected legal interest of the crime of trespassing can be interpreted as the right to housing, and in this case, whether the will of the person with the right to housing is violated serves as an important criterion for judgment. When assessing whether a home invasion crime is established, it is believed that the resident's will must be fully taken into consideration when interpreting the ‘act of trespassing'. In other words, the act of trespassing in a home invasion can be considered established when it is considered an act that disturbs social peace without the explicit or implicit permission of the resident. In particular, when multiple people live together in a residential area, it is a major concern that problems with the entry and exit of others due to disagreements between residents occur. Due to overcrowding and diversification of housing types, it is expected that cases of disagreement over the entry and exit of other people in shared housing will increase in the future. Therefore, in order to prepare for this problem, it is necessary to reasonably limit the scope of the crime of home invasion by reviewing the protected legal interests of home invasion and clarifying the concept of object and execution act. The paper concludes that this change in legal interpretation reflects a deep understanding of home invasion crimes and the will to protect society, contributing to expanding the depth and scope of legal interpretation.