주거침입의 보호법익과 침입의 태양 ―대법원 2021. 9. 9. 선고 2020도12630 전원합의체 판결―

Abstract

The Supreme Court had been ruling that establishing the criminal trespassing should be mainly based on whether it is against the actual or presumptive intention of the resident, but in this ruling en banc which this article targeted, the Court changed its standard of judging for the trespass by saying that it should be based on the mode of intrusion of the actor, but not based only on the resident’s intention. According to the new standard, criminal trespassing can not be recognized when the actor enters the residence up to the usual method of entry even though it is against the will of the resident who was not present. The Court has taken the serenity theory with respect to the legal interests of protection of the criminal trespassing. It can be assumed that this ruling can in fact objectify the concept of serenity in that it actually finds the meaning of serenity in the mode of intrusion, not in the intention of the resident. It can also be said that the scope of criminal trespassing can be greatly reduced, resulting from this ruling. However, this ruling cannot be regarded as justifiable for the following reasons. First, opting certain position regarding legal interests of protection of criminal trespassing does not logically lead to the specific position concerning the subsumption of criminal trespassing in the co-resident case where the actor enters a co-residence with permission of one of its co-residents but against the other’s will. Second, criminal trespassing is a crime against personal legal interests, not against social legal interests, so the protected legal interests must be viewed as the right to residence or the freedom of residence under the Constitution. Third, in fact, the concept of serenity is very vague, and the subsumption criteria are very diverse even within the serenity theories. Fourth, the legal principles of the Court ruling firmly established in relation to various facts over the past decades should not be easily changed through the individual precedent. New standards should be formed with legislation rather than the Court, if they are needed. Legal stability will be considerably impaired and confusion in the practices will arise as a result of this ruling.