정당한 이유없이 출입을 금지당한 공동거주자가 공동생활의 장소에 들어간 경우 주거침입죄의 성립여부

Abstract

Recently the Korean Supreme Court(KSC) overturned the former rules on housebreaking, saying that “if the defendant, in the absence of his/her affair partner’s spouse, went inside the affair partner’s residence with the consent of his/her affair partner only, the crime of housebreaking cannot be established even if his entrance is considered to be against the will of the affair partner’s spouse.” In a series of cases the The KSC ruled that the housebreaking against the resident’s will doesn’t constitute the crime of housebreaking when it doesn’t disturb the actual peace in residence. These new rules caused a dispute, because those rules run counter to the former ones on the legal interest of housebreaking, the standard for its judgement in a case related to housebreaking by a fornicator of the spouse. The concept of legal interest in housebreaking crime that the judgement suggested differs from the general usage of it in the theory of criminal law and in numerous decisions so far. And the new judgement caused inconsistency between the existing judgements by deciding whether the act of entering other’s residence is trespassing only based on the superficial form of the action regardless of the will of the resident. Furthermore, the judgement reduces the extend of punishment excessively by leaving the right of the resident meaningless and even by creating asituation where trespassing with a purpose of committing a crime cannot be punished. In this paper I will discuss about the concept of legal interest in criminal law and how it should be understood with respect to housebreaking and the resonable way to judge the act of ‘breaking in’ in the case of housebreaking, and offer a rational solution to those issues based on the discussion.